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SECESSION AND SLAVERY: 



OR, 



THE EFFECT OF SECESSION ON THE RELATION 

OF THE UNITED STATES TO THE SECEDED 

STATES AND TO SLAVERY THEREIN ; 



a 






CONSIDERED AS A 



QUESTION OF CONSTITUTIONAL LAW, 



CHIEFLY UNDER THE AUTHORITY OF 



DECISIONS OF THE SUPREME COURT. 



JOEL PRENTISS BISHOP, 

AUTHOR OF " COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE,'' 
" COMMENTARIES ON THE CRIMINAL LAW," ETC. 



BOSTON: 

PROOF SHEET — NOT PUBLISHED. 
18 63. 



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Entered according to Act of Congress, in the year 1863, by 

JOEL PRENTISS BISHOP, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

Is Bxohango 
Cornell Univ. 

2 Feb 06 



cambridoe: 
Alien and Farnham, Stereotypers and Printers. 



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INTRODUCTORY NOTE. 






This pamphlet is divided into six chapters, as follows : 

Chap. I. Historical Sketch. 

II. The Direct Consequences resulting' from the Act 
of Secession. 

III. Some Radical Views considered. 

IV. The Effect of Contract between the seceded 

States returning-, and the United States. 
V. The Emancipation Proclamation. 
VI. Concluding Summary. 

As originally written, the pamphlet contained also a 
chapter entitled, " The Consequences resulting from the 
War which Secession creates.^ But finding that the in- 
sertion of this chapter would make the pamphlet too long, 
while the chapter itself was too short for an adequate dis- 
cussion of its subject, I determined to omit it; and, whether 
it will be hereafter given to the public in an enlarged form 
or not, the public will learn in due time. 

The pamphlet here presented embodies a discussion of 
the question, which, more than any other, perplexes, at 
the present moment, the people of this country. Will the 
people read ? Will they reflect ? W T ill they hear a voice 
which speaks the language of the law, and not the language 
of the politician ? These are questionsVhich will be all an- 
swered in the affirmative, before the durable peace we seek, 
descends to us. 



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iv INTRODUCTORY NOTE. 

The views which this pamphlet contains, were written out 
in a somewhat different form before the present civil war 
had assumed any large proportions. But it was evident that, 
if published, they would be received with indifference or 
with scorn by those who should be benefited by them. So 
the manuscript lay upon my shelves unused. In like 
manner, this pamphlet has lain by, stereotyped, for several 
weeks, since it was put into this permanent shape in type- 
metal. Am I still too early ? He who rules all things 
knows ; I do not. I sent out,, in my " Thoughts for the 
Times," the first dove ; but it returned. Will this one 
come back ? or, if it does, will it bring the olive leaf ? 

Many readers will object, that this pamphlet is written 
in a style which lacks gravity, and that it does not so 
soberly consider serious questions of law as it ought. There 
are serious legal questions — difficult ones — connected 
with our present national troubles, but the questions dis- 
cussed in this pamphlet are of another class. There is, 
indeed, the serious question, — Shall we obey the law ? 
but there is no difficulty as to what the law is. Politicians 
may shed darkness upon the matter ; but posterity will say, 
that, among the topics handled in these pages, there is no 
one which deserved a graver consideration than it has here 
received. And the great question which this nation is 
answering, in the presence of earth and of heaven, is, not 
what the law is, not whether the Constitution which our 
forefathers made is a wise one, not whether the law of 
our Constitution ought not to bo amended ; but it is, 
whether the people of this country shall continue to put forth 
falsehood about a Constitution ivhich they will not either 
amend or obey. 

J. P. B. 
Boston, December, 18G3. 



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SECESSION AND SLAVERY. 



CHAPTER I. 

HISTORICAL SKETCH. 

The present is a moment at which, if ever during 
the war, the public mind may be supposed to be 
prepared to receive some seeds of what the writer 
of this pamphlet understands to be truth. It is but 
a few weeks since he put forth another pamphlet, 
wherein he showed, that, both in war and in peace, 
it should be our first aim to obey the law of the 
land. That pamphlet, entitled "Thoughts for the 
Times," fell on ears which found little time to listen 
to such an admonition as this. Was not Policy 
abroad? Why, then, should we care for Law? 

Let us look. There are two kinds of law: the 
first, and that with which the people of this country 
are happily more familiar than with the other, is the 
law of peace; the other, is the law of war. The 
one, is administered in the civil tribunals of the 
land ; the other, is administered in that great hall, 
redolent with the light of peace, wherein, amid the 
1* (5) 



6 SECESSION AND SLAVERY. 

roar of rolling musketry and choral cannon noise, 
the souls of the patriot brave wind wreaths of glory 
on their brows, and many a weary one ascends to 
his everlasting rest. Over the civil tribunals, Taney, 
C. J., and some others, at present, preside ; over 
this other tribunal presides, at the present moment, 
Abraham Lincoln, President of the United States. 

When the rebellion, which for a long series of 
years had been coming silently up, culminated into 
open acts of treason, the government of the United 
States was being administered, both in its various 
civil departments, and in those also which control 
the war-dealing power, by men of the Democratic 
party in politics. James Buchanan presided, in 
theory, over the war-arm ; but it was quiescent, and 
neither he nor anybody else deemed it wise to wake 
it into action. The civil arm slept with the war- 
arm ; nor did any considerable number of persons, 
either in power or out of power, think it well to call 
this arm into motion to punish treason, or arrest the 
course of the rebellion. This whole nation despised 
the law, both the law of war and the law of peace ; 
and, led by the Democratic party, and not much 
remonstrated with by the Republican, caused the 
administrators of both kinds of law to absent them- 
selves from their respective halls, while the halls 
were pillaged and blackened by assassins of their 
country. 

There is no harm in sometimes looking back on 
the past ; perhaps a still further view of it may here 
do us good. 

Advocates of free speech and of the utmost free- 



HISTORICAL SKETCH. 7 

dom of action there were then as now ; and these 
advocates said, — " It is wrong to interfere with men 
who merely differ from you in politics." So, as the 
assassins would not check themselves, those who 
were not assassins — not perceiving the distinction 
between liberty and license, between walking unre- 
strained beneath laws which freemen have freely 
made, and tearing with hands unappointed those 
laws away — deemed that they must not interfere, 
the matter being a mere difference in politics! 

But while the question of political liberty stood 
thus, how stood, on the other hand, the question of 
what may be termed religious liberty ? Let it be re- 
membered, that, from the beginning of things in this 
country, we — to wit, a large class of our people — 
have been zealous and humble followers of a certain 
old and honored Scripture doctrine, which is best 
known by the name of the Curse of Ham. We have 
deemed it to be our duty, as heirs of celestial glory, 
to put forth our terrestrial powers in the divine 
work of cursing Ham, Knowing that God had cursed 
Ham, we have esteemed it ours to walk in the heav- 
enly footsteps, so we have cursed Ham. Curse Ham, 
cursing Ham, cursed Ham ! By force of these three 
cardinal points, we became the Church of the Cursers 
of Ham. And as we were diligent workers with the 
church, and greatly-esteemed members of it, we 
a. rose thereby to be saints. But as for our saintships 
there was no rest, the powers of the outer darkness 
contending continually against us, we became en- 
titled, by the way in which we conducted the com- 



8 SECESSION AND SLAVERY. 

bat on our part, to the further appellation of saints 
militant. 

Scarcely can the foot of a saint, who is not mili- 
tant, find repose on the earth. What, then, could 
be expected where the foot was of one always mili- 
tant? Why, there came up, in our case, heresies 
warring against us. A heretic appeared and said, — 
" Saints should lay up their treasure, not in negroes, 
but in justice." How could such a heretic be en- 
dured ? They who, when the present rebellion 
broke out, were the most clamorous for political 
freedom, exclaimed, at this earlier time, — " Let the 
heretic be hung ! " Neither had they, when the 
rebellion had expanded to its full proportions, ceased 
to cry, " Let the heretic be hung ; " while, even at 
the present moment, they are clamoring in one 
breath for the hanging of the heretic ; and, in the 
next breath, for more of the same freedom through 
which treason wrought up rebellion into open war. 
Always, indeed, from the beginning of this heresy, 
there have been heretics hung by mobs, shot by 
mobs, tarred and feathered by mobs, and lied about 
by the respectable portion of the community ; but, 
when the political heresy of murdering republican 
liberty arose, there was no man found even to lie 
about such a heretic. It was a different bull which 
gored in the one case from that which gored in the 
other. 

There was one instance in which a heretic militant 
— only a few heretics are militant — undertook the 
same course of conduct which was afterward imi- 



HISTORICAL SKETCH. 9 

tated by the saints. This heretic, with a few follow- 
ers, stole an arsenal. Thereupon all the powers 
both of Church and State arose ! The lion of war 
shook his shaggy mane! Judicial justice brought 
out her two cups, and one pivot, and one beam, and 
put into the downward cup all her weight ! Virginia 
was herself again ! In majesty came forth the array 
of arms ! Upon the bench also, in majesty, sat the 
ministers of the civil power ! The heretic militant 
was laid low ! No — he was first swung high on the 
gallows ! It was afterward that he was cut down ! 
And not until he was put away where his palsied 
finders could steal no more arsenals, did either the 
church militant or Virginia give rest to the feet or 
slumber to the eyes of the ministers of either the 
war or the civil power ! But when, in later stealings 
of numerous arsenals, " John Brown's soul was seen 
still to be marching on," how quietly slept these two 
great power which erewhile had jointly executed 
one entire, fanatical, and heretical stealer of one 
whole arsenal ! Ah, the church militant is, a particu- 
lar thing — she may steal ! The heretic militant is 
another thing — he may not steal ! There is a dif- 
ference between Jeff. Davis and John Brown ! An- 
gels and men ! behold the difference ! Here is wis- 
dom ; look and learn ! 

Now, while we admit that there is a difference 
between Brown, the heretic militant, and Davis, the 
saint militant, — a difference which might justify a 
diversity of treatment in the two cases, — still for 
this diversity, as actually exhibited in the conduct 
of the country, we find no warrant in the Constitu- 



10 SECESSION AND SLAVERY. 

tion of the United States, or in any law properly 
existing in any State under the Constitution ; it is 
all matter pertaining to the higher law, as found 
among the mysteries of the Church of the Cursers ! 

Neither let me for a moment pretend, that the 
religious heresy, even where it assumes the ordi- 
nary form and is not militant, is not immeasurably 
worse than the political heresy of plunging the 
country into war for the sake of destroying the 
Constitution and saving the Church. 

No ! It is admitted, that even the milder re- 
ligious heretic is worse (my reader being now a 
Catholic) than the re viler of the Sacred Presence 
in the Eucharist ; or (he being a Protestant) than 
the fulminator of the last Bull ; or (he being a Jew) 
than the believer in Jesus of Nazareth ; or (he being 
a Mormon) than the disbeliever in Joseph Smith. 
All this is fully conceded. Indeed the heretic of 
whom I am speaking may, at least for the purposes 
of this argument, be set down as the king of here- 
tics, the same as, in Hiawatha, the sturgeon is set 
down as the king of fishes. And I will concede 
also, that God has raised up Jeff. Davis to slay this 
heretic, the same as Hiawatha slew the sturgeon. 

Still there is one point plain : the course adopted 
by Davis in conjunction with his followers and com- 
peers, in their attack upon the heretic, was in direct 
antagonism to, in full violation of, the law of the 
land. Yet up to the time when the saintly power 
sent forth from cannon militant the earthly missiles 
which tore down the flag of our country from Fort 
Sumter, this nation, in dealing with their saintships, 



HISTORICAL SKETCH. 11 

walked in the light of texts of Scripture, or of such 
other higher gleams as angels hand down to us, and 
not in the light either of our written Constitution, 
or of any other recognized earthly law. Indeed, 
there are still among us large numbers of people 
who cling to the higher gleams, and despise the 
lower law of our Constitution. 

Let us see what some of these higher gleams, by 
which we walked, were. One of them was expressed 
thus : " The government of the United States has no 
power to coerce a sovereign State." The rabble 
who make noises, but neither look nor think, were 
led by the more knowing ones to believe, that 
this expression was taken, letter for letter, out of 
that wondrous book of which they had heard, but 
which they did not expect ever to see, called the 
"Constitution of the United States." 

If you followed up one of these deceivers, he told 
you, that indeed these words were not in the Consti- 
tution, and that the purpose of his harangue was 
merely to point attention to the fact of their not 
being there. Well, then, it is admitted that the 
Constitution does not say r in exact terms, "You may 
coerce a sovereign State." Suppose it does not; 
neither does it, in terms, say, " You may shot your 
cannon with grape." But it provides, that the Presi- 
dent shall be commander-in-chief of the land and 
naval forces of the United States; it provides for 
the raising of such forces, and therewith, and by 
other means mentioned, for the President's faithfully 
executing the laws and causing them to be obeyed. 
If a State refuses to have her legislators and judges 



12 SECESSION AND SLAVERY. 

sworn to support the Constitution of the United 
States, — for so the Constitution directs they shall 
be sworn, — and if no other available means present 
themselves, cannot the war-power coerce the State 
into doing what this "supreme law of the land" 
declares the State shall do ? The Constitution tells 
the President what shall be his duty, namely, to 
" take care that the laws be faithfully executed ; " 
it puts into his hands the instrument, namely, the 
whole war-power of the country, with which to do 
the duty, — " but, no ! " says the deceiver, " he has no 
right to coerce a sovereign State ! " The sovereign 
State refuses to obey the laws, the President is given 
the army and navy, and told he must make the 
State obey ; he has sworn that he will faithfully 
perform what is thus enjoined, — "but, no!" screams 
again the deceiver, " the words, ' he may coerce a 
sovereign State,' are not in the instrument;" that is, 
the country is full of fools who will believe such 
stuff when knaves tell it to them ! 

Knaves! I should have said sai$$. m ..K saint knows 

— who but a saint does ? — that it is expressly writ- 
ten in the Constitution, " Thou mayst coerce a son of 
Ham ; and, if any man reviles a Curser of Ham, let 
him be crushed out." Here, if the Constitution is 
read aright, it establishes an exact form of religion, 
which religion consists in cursing Ham. Therefore, 

— so the argument runs, — if a " sovereign State," 
deeming that this cursing of Ham can be best car- 
ried on by tearing the nation in two, the United 
States has no authority to interfere by coercion to 
arrest such conduct, since the interference would be 



HISTORICAL SKETCH. 13 

an act in conflict with the provision establishing the 
church. So we come to the question, whether, in 
truth, the provision whereby the church of the 
cursers is set supreme over all other things, is really 
in the lower Constitution of the land, or whether it 
is only in the higher Constitution of the saints. 

Let us look at another of these gleamy upper 
lights, in whose effulgence we walked. It is this: 
"The chief-justice of the United States is the com- 
mander-in-chief of its armies." Now, though this 
gleam, as I have said, and repeat, springs from the 
higher fires, not being found in the Constitution of 
the United States, demagogues have told to gaping 
crowds, ever since this war began, that it is taken, 
stroke by stroke, coruscation by coruscation, — 
taken in mystic letter, — in body, soul, all, — out 
of the Constitution. These demagogues have told, 
that Taney, C. J., is entitled to command our national 
military forces ; and that, as often as Abraham Lin- 
coln declines to submit his army orders to Taney's 
revision and countermand, the Constitution is broken, 
trampled upon, and all the other evil things which 
a demagogue can name ! But here is a matter 
involving many considerations of grave import, and 
I cannot spare space to unfold it further now ; there- 
fore, I pass on with the single remark, that Taney, 
C. J., has not claimed for himself such power; 
though, in the Merryman case, 24 Law Eeporter, 78, 
— a case not well put on the part of the military 
authorities, — there fell from him some observations 
somewhat calculated to give the appearance of con- 
sent to this higher-law doctrine of the saints on the 



14 SECESSION AND SLAVERY. 

subject. Whether he will ever regret, or has re- 
gretted, that his words were not more guarded, I 
have no means of knowing ; but, be this as it may, 
there is, in the case, as properly understood, no 
sufficient warrant for the much-advocated claim of 
right to cast the civil power across the track of the 
war-power, and thereby arrest it in its course. The 
single fact, — which I have not room here to discuss, 
— that the case was not put before the judge on 
its true ground, by the military authorities, alone 
leaves the decision of no weight when applied to 
cases put on other and correct ground. 

When the rebellion first broke out into war, we 
had it laid down to us, — here is another of the 
higher gleams, — that the war, on the part of the 
United States, must be waged as follows: "The 
army of the Union," said the gleam, " may march 
to the field of conflict ; there, halt ; then it must get 
the names of the several rebels constituting the 
opposing army ; next, cause each one to be indicted 
by a grand jury of his peers ; finally, have each 
tried before a petit jury, — no, jinaUy, after this, — 
shoot ? no — stand by and see the marshal hang the 
traitors ! " Such, we were assured, was the pro- 
vision of the Constitution ! Let us look : Art. V. 
of the Amendments — this is admitted — reads, " No 
person shall .... be deprived of life, liberty, or 
property without due process of law;" which words 
" due process of law " mean — this is likewise ad- 
mitted — indictment, &c, as just explained. There 
are other clauses of the instrument which signify 
also substantially the same thing. Now, was this 



HISTORICAL SKETCH. 



15 



rule of procedure laid down, in the Constitution, 
for the guidance of the war power, or of the 
civil? "For the guidance of both," shouts the 
demagogue ; and a chorus of fools' voices responds 

" hurrah ! " 

The last expression which I have seen of this 
demagogical proposition is contained in the protest 
of Vallandigham against being tried by Gen. Burn- 
side's court-martial. Let me copy it. I find it in 
the recently published authentic report of the trial. 
It is as follows : 

" Arrested without clue ' process of law,' without warrant from 
any judicial officer [so is every rebel prisoner captured], and now 
in military prison [so are all the rebel prisoners, except when out 
on parole], I have been served with a ' charge and specifications ' fso 
is every rebel spy or other rebel prisoner who is tried after being 
captured], as in a Court-martial or Military Commission. I am 
not [nor is Jeff. Davis] in either ' the land or naval forces of the 
United States, nor in the militia in the actual service of the United 
States;' and therefore [the old argument against the govern- 
ment's right to interfere, by military power, for the suppression of 
the rebellion] am not triable for any cause, by any such Court, 
but am subject, by the express terms of the Constitution, to arrest 
only by due process of law, judicial warrant, regularly issued upon 
affidavit, and by some officer or court of competent jurisdiction for 
the trial of citizens, and am now entitled to be tried on an indict- 
ment or presentment of a grand jury of such court, to speedy and 
public trial by an impartial jury of the State of Ohio, to be con- 
fronted with witnesses against me, to have compulsory process for 
witnesses in my behalf, the assistance of counsel for my defence, 
and evidence and argument according to the common laws and 
ways of judicial courts." 

The remainder of the protest is not material to 
the present point. 

Vallandigham, being retained by the military 



16 SECESSION AND SLAVERY. 

triburical for trial, and condemned, notwithstanding 
the protest, applied to the Circuit Court of the 
United States for a writ of habeas corpus to set him 
at liberty. The court, on full hearing of counsel, 
refused to grant the writ. 1 

Now, whether it was a judicious exercise of the 
war-power to extend the line of its operations so 
far as Dayton, Ohio ; and whether, when this power 
captured Vallandigham as a prisoner of war, trying 
him by court-martial as it does spies and some other 
classes of prisoners of war, instead of holding them 
for exchange, it placed its fangs on an enemy or on 
a friend, — this I do not propose to discuss. But, as 
we have seen, when Vallandigham appeared before 
the military tribunal, demagogism found its chance 
to speak ; and it pronounced, in almost exact terms, 
the same speech over again which the saintly gleam 
had employed at the earlier period, in pointing out 
the way in which loyal stupidity should meet, on the 
field of conflict, disloyal saintship. And when Val- 
landigham went thence with his case before the civil 
tribunal, lo, the heavenly gleam was still with him ; 



1 See the full Trial, as recently published in Cincinnati. I cannot but 
recommend it to the perusal of gentlemen ■who are engaged in inquiries 
concerning the law of this subject. The argument of Mr. Perry, who 
appeared as counsel for Gen. Burnside on the application for the habeas 
corpus, is particularly instructive ; though I do not mean to say Iioav far 
I concur in his views. Ex-Senator Pugh, who represented Vallandigham, 
presented fully the cause of his client ; but his argument is subject, at 
least, to this one observation, that principal points in it had been already, 
probably unknown to him, decided adversely to his positions by the Su- 
preme Court of the United States. It contains, however, the substance 
of what could with decency be said on that side of the question, before a 
judicial tribunal. 



HISTORICAL SKETCH. 



17 



and thus spake the gleam through its entranced 
demagogism, and said: "I come to yon, Judge, 
from out the sainted airs above, to say, that, by the 
laws of the upper realm, where I dwell, this court is 
supreme over Gen. Burnside and his forces ; here is 
an order made by the general, the court is com- 
manded to revoke the order." Yet the civil tribunal, 
not finding the law referred to laid down in the 
Constitution, did not decide to usurp jurisdiction 

over the military power; but the (let the 

blank stand there), determined to overrule both the 
civil and the military authorities, to revise and correct 
the proceedings of both courts alike ; and, in order 
to preserve tranquillity throughout the loyal country, 
and to rebuke the radicalism of setting up the Con- 
stitution above the Church, — to show how loved are 
the political doctrines which Vallandigliam has been 
putting forth ever since this rebellion broke out, 
and hflw much worthier he is esteemed to be than 
are all his peers, — to testify likewise to how much 
more he knows than do the generals and the judges, 
and how much purer of heart he is than they, — to 
put him, moreover, if possible, in command of gen- 
erals and above judges, — finally, to check the 
course of this " unholy Avar," which § leading men 
into forgetfulness of the Church, and into too much 
regard for the law and the Constitution of the coun- 
try, — nominated him candidate for governor of 
Ohio ! 

So we get back to the place whence we started. 
At the opening of the rebellion, the larger part of 
the people said, " Away with both the civil and the 

2* 



18 SECESSION AND SLAVERY. 

military powers ! These rebels are saints-militant ; 
it would be a violation of the higher law, which is 
above the Constitution of the United States, to inter- 
fere with their saintly course ; let both the military 
power and the civil sleep. By and by, the military 
power was awakened by the cannon which shot away 
the flag of the Union from Fort Sumter. Then the 
people who loved the saints, not to say the saints 
themselves, appealed from the military power, as 
represented by Lincoln, to the civil power, as repre- 
sented by Taney. Taney was understood to take 
sides against Lincoln. From that day downward 
went up a scream in favor of the civil power. Here, 
a way was supposed to be found in which the hands 
of the government could be palsied, and the rebel- 
lion and church left to triumph, while the nation was 
destroyed. " The civil jurisdiction," said the scream, 
" must be preserved just the same in war as in 
peace ; the courts must be always active, cumnltmding 
armies as they do constables and sheriffs ; or our liber- 
ties are gone forever ! " At length, in the case of 
Vallandigham, and some other cases, the civil power 
refused to rush into the fight against the military ; 
so now, as both the civil arm and the war-arm are 
lost to the Cmirch, the scream explodes thus: "Let 
both arms lie palsied in the dust, or the saint will not 
succeed in slaying the heretic ? " 

I hope I shall not be understood, in these obser- 
vations, as casting reproach upon those conscientious 
men who, instead of reading the Constitution for 
themselves, blindly follow unscrupulous leaders ; and 
so believe, what they are told, that the Constitution 



HISTORICAL SKETCH. 19 

says, — u The United States shall not coerce a State," 
— "The judges, and not the President, shall com- 
mand the army and navy," — " The army may indict, 
and the like, but must not shoot," — together with 
the rest of the stuff wherewith demagogues, who 
want the votes of the saints, undertake to beguile 
also the sinners. 

It is a question of theology, which I do not mean 
to discuss, whether we may not play false for the 
glory of the church. Let us admit that we may. 
Still, if we turn to the Constitution of the United 
States, we shall search this instrument in vain to find 
in it the provision authorizing such a procedure in 
political and governmental matters. 

The result to which we come is this : It may be 
our higher-law, religious duty, as Cursers of Ham, to 
do one thing, or another thing ; but, as citizens of 
the United States, it is our lower-law duty to look 
into the Constitution of the United States for oar- 
selves, take no demagogue's word as to what is in 
it ; read it ; then obey. In the following chapters, I 
shall endeavor to give some assistance to such per- 
sons, whether lawyers or laymen, as propose to read 
the Constitution for themselves, in order to under- 
stand what is our present relation to the seceded 
States and to slavery therein. I shall not have occa- 
sion to ask my readers to reject any doctrine ever 
held by any court, or any judge, or any writer on 
constitutional law; or, indeed, by anybody else, 
unless we may except some of the demagogues of 
the present day, whose religious duties, as Cursers of 
Ham, or whose aspirations after the heaven of office 



20 SECESSION AND SLAVERY. 

wherewith the church promises to reward her follow- 
ers, have led them to deny the conclusions to which 
I would conduct my readers, in such terms as possibly 
to include also some of the premises ; though of this 
exception I am not sure. On the contrary, were I 
to discuss the subject much more at length than I 
intend in these pages, I should have only to enforce 
the doctrines which have already been laid down by 
the judiciary, by congress, and by writers on consti- 
tutional law who have gone before me. 

The present pamphlet does not profess to contain 
a complete juridical discussion of the entire subject. 
This fuller discussion I reserve for a book, wherein 
I propose to consider, as a commentator on the law, 
the several questions of constitutional, and some of 
the questions of statutory and international law, 
involved, whether as cause or attendant, in our pres- 
ent civil war. The doctrines of this pamphlet are 
principally drawn, as its title-page indicates, from 
the decisions of the highest court known under our 
Constitution, the Supreme Court of the United 
States. Though they are put forth in a form semi- 
popular, they are believed to be as legally exact as 
if they were dressed in the ordinary garb of a pro- 
fessional treatise. There are questions connected 
with our present subject, upon which judicial decision 
has not yet passed. I have avoided the discussion 
of these questions in order that in this pamphlet 
nothing; might be set down which is not settled law, 
— settled by the Supreme Court of the United 
States. Whether there are not parts of our law, — 
in fact, parts of our Constitution, — the final as well 



HISTORICAL SKETCH. 21 

as the immediate interpretation whereof rests with 
other departments of the government than the judi- 
ciary, is a question which I do not propose to discuss 
in this pamphlet, though it was long since adjudged 
by the judiciary that there are. In this pamphlet I 
assume, that, upon all the questions discussed, the 
Supreme Court of the United States is the ultimate 
authority. 

Had I never seen men before this war broke out ; 
and had I, since the war broke out, been blind and 
deaf to all which passed before me ; I should sup- 
pose, that now, since the close of the last sittings of 
the Supreme Court of the United States, substantial 
harmony would prevail among all persons who call 
themselves loyal throughout the country. But, 
alas ! men are not what they profess, things are 
not what they seem. 

There have been among us, from the beginning 
of this war, men who have clamored against it, 
as violating the Constitution of the United States; 
for, they said, that, by the Constitution, there could 
be no war for the subjugation of rebels in arms in 
seceded States. Thus, as late as last May, Ex-Sen- 
ator Pugh, one of the leaders in this class of politics, 
standing before a judicial tribunal as the advocate of 
Vallandigham, another leader, in the case mentioned 
a little way back, put forth the following doctrine, 
as a full and sufficient answer to whatever could 
be said, and had been said, against his client: "I 
affirm, then, distinctly, that the government of the 
United States cannot exercise, and cannot claim, the 
rights of public war as against the people of a State 



22 SECESSION AND SLAVERY. 

in rebellion ; in other words, sir, it has, at present, 
no belligerent right whatsoever." — Vallandighmris Trial, 
p. 205. This speech was prepared for the press by 
its author, so the extract given is absolutely correct. 
And the same doctrine has been asserted over and 
over again by this class of politicians, — the same 
class, mind ! who are ever clamoring to their dupes 
with the feigned fear that the war-wielding power 
of this country is to override the Supreme Court 
of the United States, ivJwse decisions they pretend to 
accept as the final and absolute law I 

Yet, unknown to this advocate and to his client, 
full two months before this speech was uttered, the 
Supreme Court had unanimously, by all its judges, 
the much lauded Taney, C. J., concurring among 
the rest, decided, that, from July 13, 1861, accord- 
ing to the opinion of the minority, and from an 
earlier date, according to the opinion of the ma- 
jority, the United States had been constitutionally, 
and in fact, carrying on a public civil war against 
the rebellious portion of the country, with the full 
belligerent rights which war gives, as known in the 
law of nations. Until the decisions embracing this 
doctrine appear in the regular Reports by Black, the 
reader will find them stated sufficiently at length in 
Lawrence's Supplement to his late edition of Wheaton. 

But does the enunciation of this doctrine by the 
Supreme Court, — not by a heretical and fanatical 
majority of its judges merely, but by the whole 
court, including those staid and substantial members 
on whose shoulders even the church herself had here- 
tofore reposed, — abate the denunciations of these 



HISTORICAL SKETCH. 23 

men against the government? Are they ready to 
bow before their own authority, when this author- 
ity steps out from supporting them in their attempts 
to break down the people's respect for the govern- 
ment? — in their attempts to make prejudiced men 
believe, that, unless they elevate them to office, the 
Constitution will be overthrown ? No ! The more 
desperate the chances become of getting office by 
opposing the operations of the government in this 
trial hour, the more boisterous grows the clamor. 
And now, while I write, there are office-seeking 
demagogues trying to plunge the North into a civil 
war, not because the government is doing any thing 
which the Supreme Court has said it has no right to 
do, but because it does not set them up as the inter- 
preters of the Constitution; and, in obedience to 
their interpretation, virtually stop the war. 

So, then, according to these men, neither Con- 
gress, nor the President, nor yet the Supreme Court 
of the United States, is the proper interpreter of the 
Constitution ; this work is to be clone by politicians 
aspiring for office, and by newspapers in their inter- 
est catering to the prejudices of an unread rabble ! 
One of the processes of the war — the draft, pro- 
nounced to be constitutional by Congress, by the 
President, and by those learned officers whom the 
Constitution has pointed out as the advisers of 
the President — must be stopped till the enemy has 
had time to overpower our reduced armies in the 
field, because demagogues deem it will promote 
their chances for an election to represent the draft 
to be unconstitutional! The demagogues, then, — 



24 SECESSION AND SLAVERY. 

so they condescend to inform us themselves, — are 
the interpreters of the Constitution ! 

That the decisions which the Supreme Court has 
made, relating to the topics of the following pages, 
will please these men, I have no present belief. That 
they will bow before these decisions, I have no ex- 
pectation, since they refuse to bow before the other 
decisions. But there is one thing to which they will 
bow. When the people throw off the demagogial 
trance into which they have been cast by office-seek- 
ers who want their votes and the votes of southern 
rebels at the same time, and so read for themselves 
the Constitution and the decisions of the Supreme 
Court, the most inveterate demagogue, out of love 
to the people and the Constitution, will eat his former 
words, and rush where the voters in heaviest col- 
umn go. 



. DIRECT CONSEQUENCES OF SECESSION. 25 



CHAPTER II. 

THE DIRECT CONSEQUENCES RESULTING FROM THE 
ACT OF SECESSION. 

It has been assumed, even by men who are not 
Cursers of Ham, that, since the States seceding had 
no power to withdraw from the Union, therefore 
their several acts of secession were, in law, nullities ; 
leaving the States to stand, toward the general gov- 
ernment, in the same legal situation as if the acts 
had not been passed. 

Let it, then, be stated, that this proposition has no 
foundation either in the law of the case or in the 
facts of the case. It is sustained by no decision of 
any court, by no dictum o£ any judge, by no obser- 
vation of any writer on constitutional law ; it rests 
only in mere loose assertion, made, since this rebel- 
lion broke out, by persons who, whatever might have 
been their capacity to form a correct opinion, had 
given to the question no adequate investigation. 
The phrase, " The act of secession is a nullity" is, in 
most instances, practically employed for one or the 
other of two opposite purposes ; either, to convey 
the .idea, that the utterer of it is intensely loyal ; 
or, on the other hand, to impress on the hearer's 
mind the falsehood, that no evil consequences can 

3 



26 SECESSION AND SLAVERY. 

lawfully be made to fall upon the participators in 
secession, since the act of seceding is a null act. 

Looking at this 'question as one of fact, we all 
know, every boy in the land knows, it is known 
even to the most ignorant peasant in Europe, that 
the proposition which asserts the act of secession to 
be a nullity is false. I say, everybody knows that 
secession was not a nullity in fact. Upon the act of 
secession, the State which had passed it, ceased to 
have a governor, judges, legislators, and other State 
officers, performing their several official functions 
under the recognized binding obligation of an oath 
to support the Constitution of the United States. 
No considerable number of the citizen-voters in any 
such State acknowledged, after the passage of the 
secession act, what all acknowledged before, a duty 
of allegiance to the United States ; and, in no such 
State, did any single State officer, of any grade 
whatever, acknowledge, after the act was passed, 
such duty of allegiance. The relation of the State to 
the United States was, by the act, as completely 
changed, looking at the matter now simply as one 
of 'fact, as would have been the relation of the moon 
to the earth if she had gone off and embraced the 
sun, or as would now be that of my pen to this sheet 
of paper, if, ceasing to write upon it, its material 
substance should go down and incorporate itself 
with the sole of my boot. Completely, thus, did 
the act of secession change, in fact, the relation of 
each seceding State to the United States. 

But if the moon should go and embrace the sun, 
there would be left on the earth men who would 



DIRECT CONSEQUENCES OF SECESSION. 27 

say, that, since this procedure was contrary to the 
law of nature, it did not take place in law ; but, in 
Mo, the moon still Tevolves around our planet as 
before : so, should this pen incorporate itself into 
the substance of the sole of my boot, we should 
hear wiseacres tell, that this procedure was utterly 
forbidden by the law of its nature, therefore it did 
not take place, therefore the pen is writing still, — 
at least it is still writing in law. 

Is, then, the relation of the seceded States to the 
United States one thing in fact, and directly the 
opposite thing in law ? These States are, as they 
always were, bound, by law, to render allegiance to 
the United States ; it is a fact of the law that they 
are so bound, — Do they, therefore, render allegiance 
in law ? If yea, why is this war ? If their relations 
are not changed in law, what has the law to com- 
plain of? And, pray tell, have we the right to fight 
a State, or a man, whose conduct in fact has wrought 
no change in his relation to us in law ? So, in the 
jurisprudence of our courts, if I sue you, Mr. 
Reader, and it appears that, on a day named before 
suit brought, I had no right in law and in fact to 
sue you, yet I prove a change in fact to have taken 
place after that day, — Does this entitle me to 
recover unless the change brought also with it a 
change in our legal relations? 

No. If it be true that secession has wrought no 
change in legal relations between the seceded States 
and the United States, then the United States has 
no legal right to complain of it. Complaint might, 
indeed, be made of such action of the people as cap- 



28 SECESSION AND SLAVERY. 

turing forts, marching armies against us, and the 
like, but not of the act of secession. And it is a gen- 
eral proposition, — a proposition to which, so far as 
I know or believe, there is no exception, — that no 
man has any legal right to complain of any act which does 
not change the legal relation between himself and the doer 
of the act. From this proposition comes another, or, 
rather, the other is the same proposition as this, put 
in different shape, and applied to the particular sub- 
ject of our present discussion, namely, — If .secession 
has not changed the legal relation of the seceded States to 
the United States, then, as the United States has no legal 
light to complain, so these States had the legal right to 
secede. 

But, in truth, the act of secession did work as 
great a change in law as it did in fact. If it 
wrought no other change, it placed the seceded 
States in the situation of delinquents from duty, 
and placed the United States under obligation to 
come clown upon them with all its power, military 
and civil. It annulled all those civil rights which 
they derived under the Constitution, and which per- 
tain to the ordinary condition of peace ; because 
such is the effect of war ; and that the United States 
is now constitutionally carrying on against them, 
war in its full sense, with its full consequences, we 
have already seen to have been adjudged by the 
Supreme Court. I am speaking of the effect of the 
act of secession, and of the matter as it now stands, 
not of what will legally result from a return by 
these States to duty. Therefore, let me repeat, 
that, as already decided by the Supreme Court of 



DIRECT CONSEQUENCES OF SECESSION. 29 

the United States, the act of secession, with the war 
which has followed it, has placed the seceded States 
in the condition of a mere belligerent in war, as to 
rights, the United States being the other belligerent, 
— of war as known to the law of nations, — of war 
depriving those States, and their people, of the ordi- 
nary civil rights pertaining to peace, as set down in 
the Constitution. So, at least, I understand the 
decisions as I have seen them, not fully reported ; 
and such is plainly the true view of the question. 
Furthermore, the act of secession brought upon the 
seceded States those special consequences which the Con- 
stitution has provided as the penalty for the act. What 
those special consequences are, we shall see further 
on in this chapter. 

These are the outside, palpable views of the mat- 
ter, and they require no further illustration. But 
there are also some inner views, which it will be well 
to consider here. It is known to every person in this 
country, whether read in the law or not, that, by the 
common understanding and by the practice in all 
the States, a State may change, as often as she 
pleases, her forms of State government, — a change 
which is usually effected by an alteration of her 
State Constitution, or the adoption of a new one, — 
only that this proposition has, somewhere, its limits. 
This general doctrine has been sanctioned by the 
Supreme Court in several cases; for the present 
purpose it will be sufficient to refer to Luther v. 
Borden, 7 How. U. S. 1, — a case which will be again 
cited a little further on. 

When we inquire for the limits of this doctrine, 



30 SECESSION AND SLAVERY. 

we find them drawn in the United States Constitu- 
tion. One of these limits will be more particularly 
considered in the fifth chapter of this pamphlet, 
where it will be seen, that, if a State has entered 
into a contract, she cannot, by any change in her 
constitution, cast off the obligation of the contract, 
being restrained from doing so by the well-known 
clause in the Constitution of the United States, pro- 
hibiting the States from passing " any law impairing 
the obligation of contracts." 

Another limit is, that, since by the Constitution 
of the United States the judges and other officers of 
the States must be sworn to support this Constitu- 
tion, no State can so change her form of govern- 
ment as to be entitled to dispense with the adminis- 
tration of this oath to these officers. 

Another limit, which has been much discussed in 
this country, is, that no State can, by any act of gov- 
ernmental change or otherwise, divest herself of the 
duty to return fugitives from labor, escaping within 
her borders from other States. 

There are still further limits, but those which 
have been mentioned are sufficient for the present 
purpose of illustration. 

Now, suppose a State attempts, by means of some 
change in her government, to free herself from one 
or more of the before-mentioned duties, or from any 
other particular obirgation, or all the obligations, im- 
posed on her by the Constitution of the United 
States, — What is the result, and what course is the 
general government to pursue toward her? Ob- 
viously the matter will depend somewhat upon the 



DIRECT CONSEQUENCES OF SECESSION. 31 

nature of the alteration in the State government 
attempted, and upon a consideration of the particu- 
lar duty or duties designed to be evaded. But what 
is to be here noted is this : The political department 
of the general government may decline to recognize 
the new State government, in which case the declina- 
ture will be binding also upon the judicial depart- 
ment ; or, this course not having been in the indi- 
vidual instance pursued, the several departments of 
the United States government will treat as null those 
things in the State government and constitution which 
are. in conflict with the Constitution of the United 
States. Each of these two methods will be illus- 
trated in the following pages of this chapter. 

In the fourth chapter, the reader will see some de- 
cisions referred to, in causes which went for adjudi- 
cation before the Supreme Court of the United 
States ; wherein it appeared, that the State of Ohio 
had undertaken, first by a legislative act, and after- 
ward by adopting a new constitution, to cast off 
from herself the obligation of a contract relating to 
the subject of taxation. Here, when she changed 
her constitution, no objection was interposed by the 
general government to the change ; and so the new 
State government was recognized as the proper 
State government, standing legitimately in the place 
of the old one. But the Supreme Court held, that 
the change, though thus recognized in general terms 
by the political department of the government of 
the United States, could not be deemed judicially so 
to operate as to relieve the State from the obligation 
of her contract. Doubtless the political department, 



32 SECESSION AND SLAVERY. 

could the question have gone before it, as it did 
before the judicial, would have decided it also in 
the same way. Here, it is seen, the new constitu- 
tion and government of Ohio were, up to a certain 
point, recognized and held to be good and valid 
for every thing they professed and claimed ; but, 
beyond this point, to be mere null things, because in 
conflict with the Constitution of the United States. 
And this decision harmonizes with the general doc- 
trine of the courts, respecting unconstitutional laws ; 
namely, that a statute is to be adjudged constitu- 
tional for all purposes which it was within the. con- 
stitutional power of the legislature passing the statute 
to effect ; for all other purposes, void. It is seldom, 
therefore, that a legislative act is pronounced void 
in full ; it is void so far as it transcends the consti- 
tutional power of the legislature passing it ; for the 
rest, valid. And so likewise, we see, I are the acts 
of a State changing' her State constitution and gov- 
ernment ; they may be good in part, and invalid for 
the residue. Such an instance is shown in these 
cases from Ohio, decided, as just mentioned, by the 
Supreme Court of the United- States. 

But a State may undertake to make such a sweep- 
ing change in her government, that the United 
States authorities will refuse to recognize, to any 
extent, the new government. Such an instance, or 
series of instances, formed the prelude to the present 
war. Certain States called conventions, such as, ac- 
cording to established custom and law, were author- 
ized to change the governments of the States ; then, 
through these conventions, proceeded to disrobe 



DIRECT CONSEQUENCES OF SECESSION. 33 

themselves of their State governments; next, to 
enrobe themselves in new governments, unknown 
to the Constitution of the United States. This, in 
exact language, is what these States performed in 
the act of secession. The first part of the process 
— namely, the disrobing of themselves of the old 
governments — was a proceeding fully within their 
power; it was no violation of the Constitution of 
the United States. But the remaining part of the 
process — namely, the attempted putting on of dis- 
loyal robes— was a matter quite beyond their 
power ; it was a thing done in violence to the Na- 
tional Constitution. And the omission to put on 
new loyal robes, the old ones having been lawfully 
taken off, became now, under the circumstances, an 
omission of duty, violative of the Constitution of 
the Nation. Some of these States, indeed, seceded 
by legislative act ; but the particular method adopted 
was an internal affair of their own, and the case is 
to be considered the same as if the secession of all 
had been by convention. 

When this work was fully done, the seceded 
States presented themselves to the general govern- 
ment, and asked to be recognized in their new garbs. 
But the general government refused to recognize 
them thus, not because there was objection to the 
mode in which the new garb was put on, the objec- 
tion was to the garb itself. In Missouri, the conven- 
tion which was elected to consider the matter of 
secession, and which would have passed the secession 
ordinance, had it been possible to obtain a vote of 
the majority for such a purpose, finding the legis- 



34 SECESSION AND SLAVERY. 

lature of the State disloyal, abolished it and estab- 
lished a new but loyal State government in its 
place ; and the government of the United States 
recognized this new government, and disowned the 
old one. 

As matter of settled law, therefore, the seceded 
States had the rio;ht to cast off their former State 
governments. This they did ; and this fact the 
United States has recognized. The old governments 
of these States no longer exist as facts ; the power 
to stop their breath existed constitutionally in the 
States ; the States have exercised the power ; the 
government of the United States has recognized 
the fact of its exercise ; and, at this day, there are 
in these States no governments which are recognized 
by our general government. In other words, these 
States are, by our government, recognized as States 
having no State governments. And when we look 
into the case we perceive, that such they truly are. 

Let us see a little further, how the matter stands 
with these States and the United States respectively. 

In the pamphlet entitled "Thoughts for the 
Times," I called attention to the following provision 
of the Constitution of the United States: Art. IV. 
§ 4, — " The United States shall guarantee to every State 
in this Union a republican form of government, and shall 
protect each of them against invasion ; and, on ap- 
plication of the legislature, or of the executive 
(when the legislature cannot be convened), against 
domestic violence." And we saw, that these seceded 
States have not, since secession, republican forms of 
government, within the meaning of this provision ; 



DIRECT CONSEQUENCES OF SECESSION. 35 

in fact, we now see, that they have no governments 
whatever, as recognized by the government of the 
United States. The inquiry, as to what is the pre- 
cise meaning of the expression "republican form of 
government," as used in this constitutional provis- 
ion, is therefore wholly unimportant here ; because, 
when our United States government, acting cor- 
rectly, recognizes the non-existence of any State 
government within a State, this recognition settles 
the main point, namely, that, since there is no gov- 
ernment in the State, there is no " republican form 
of government" there. To say that a State has a 
republican form of government, when it has no gov- 
ernment whatever, as recognized by the United 
States, would be the height of absurdity. 

The United States is, therefore, bound to execute 
this guaranty of a republican form of government 
to the seceded States. As to the meaning of this 
provision, let me say a further word. The term 
" United States " is broad enough to include all the 
people of the United States, and all branches of its 
government. So, in fact, it does ; but, in the case 
mentioned some pages back, of Lather v. Borden, 
7 How. U. S. 1, which was a case growing out of 
what was called the Dorr rebellion in Rhode Island, 
the Supreme Court considered, that, though this 
clause of the United States Constitution did bind all 
the departments of the government of the United 
States, yet it was for the executive and legislative 
departments, — in other words, for what is called the 
political department, — not the judicial, to determine 
whether a particular State had, at a particular time, 



36 SECESSION AND SLAVERY. 

"a republican form of government," within the 
meaning of this provision ; and, if there were within 
the State two such forms claiming to satisfy the 
provision, to decide which one of the two should be 
accepted as the true one, and the decision would 
bind the judicial tribunals. Let me quote a few of 
the words employed by Taney, C. J., in giving the 
opinion of the court : " The Constitution of the 
United States, as far as it 1ms provided for an emer- 
gency of this kind, and authorized the general gov- 
ernment to interfere in the domestic concerns of a 
State, has treated the subject as political in its 
nature, and placed the power in the hands of that 
department." The learned judge then recites the 
article of the Constitution which I have extracted 
just above, and proceeds: "Under this article of 
the Constitution it rests with Congress to decide, 
what government is the established one in a State. 
For as the United States guarantee to each State a 
republican government, Congress must necessarily 
decide what government is established in the State 
before it can determine whether it is republican or not. 
... Its decision is binding on every other depart- 
ment of the government, and could not be ques- 
tioned in a judicial tribunal." The learned judge, 
however, goes on to show, that, in connection with 
Congress, the President has power also to participate 
in this decision ; but, in no case, is the question one 
for the courts, the political department of the United 
States government always determin.es whether the 
government of a State is republican, within the 
meaning of the United States Constitution, and exe- 



DIRECT CONSEQUENCES OF SECESSION. 37 

cutes, or leads the way for executing (I give here 
the meaning, but do not use the exact words of the 
court) this guaranty. 

I might quote also, if it were important, from the 
writings of the late John C. Calhoun, and show, that 
this judicial exposition of the Constitution is in 
accordance with "his understanding of the provision, 
and of the respective duties, under it, of the politi- 
cal and judicial departments of the government. 
He even puts the case of Congress determining, in 
a time of profound peace, and no rebellion existing 
in any State, that the State constitutions under 
which slavery is maintained are, by reason of their 
maintaining it, not republican, thereby abolishing 
the institution in the States ; and he explains to his 
readers, that, though this decision by Congress would 
be really a decision surpassing the power of this 
body, under these circumstances, yet still it would 
be binding on the courts, and the wrong would be 
without a remedy, — except, indeed, his great rem- 
edy of nullification ; or its later form, secession. 1 
Calhoun's Works, 332 et seq. In fact, the point is 
too plain, especially since the judicial opinion in 
Luther v. Borden was pronounced, to permit the 
mind of any person read in such questions to doubt. 
But the reader will see, as we go on, that the act of 
secession has so changed the circumstances, and the 
relations subsisting between Congress and the se- 
ceded States, as not only to authorize, but to require, 
Congress to effect, in those States, the same abolition 
of slavery now, which Mr. Calhoun properly held 
would be without remedy through the courts, were 

4 



38 SECESSION AND SLAVERY. 

the thing so done, even in an ordinary time of 
peace, while the States were performing their full 
duties under the Constitution. 

Now, as already observed, — for the reader must 
bear with me though I here indulge in repetition, 
— ; when the rebellious States seceded, they claimed, 
— so we all remember, — that the* government of 
the United States should recognize them as indepen- 
dent powers, and their new State governments (for 
such, in fact, they were, whether there • was any 
change in the individual persons holding the offices 
or not) as the true governments of those States. 
This claim the government of the United States 
refused to acknowledge. Yet it did recognize the 
fact, that these new governments, within those 
States, were not such governments as were contem- 
plated by the Constitution of the United States. 
Whether, as an abstract question, they were republican 
or not, the government of the United States neither 
knew nor cared ; it did know, that it did not accept 
them as the "republican forms of government" 
which were guaranteed to them in the Constitution. 
The department of our government which deter- 
mined this question, in the first instance, was the 
executive ; and, at the time when it was thus ear- 
liest determined, the presidential chair was occupied 
by a Democrat. Afterward the same matter was 
determined in the same way, by our present Presi- 
dent, a Republican. Next, the legislative depart- 
ment followed the executive, deciding also the 
question in the same way in which the executive 
had decided it ; the courts followed still on in this 



DIRECT CONSEQUENCES OF SECESSION. 39 

same path; and the whole loyal people accepted 
these several determinations as just; so that there 
are no persons and no powers in the country, ex- 
cept the avowed rebels and their official function- 
aries, by whom this, which I am now showing, is 
denied, either as matter of law, or as matter of fact. 
Except ? No ! there is no exception. The rebels 
do not deny this ; they admit, as freely as do we, 
that their present State governments are not the 
"republican forms of government" meant by this 
section of the Constitution ; they claim that they 
are not ; they and we are here agreed. 

We come once more, then, to the conclusion, no 
one contradicting, that there are not, in any of the 
seceded States, those republican forms of govern- 
ment which the United States, in the Constitution, 
guaranties to the several States. I have shown, 
because I wished to present the exact legal condi- 
tion of the matter, that the States acted within 
their constitutional powers in casting off the old 
governments, but did not do their constitutional 
duties in declining to reclothe themselves in proper 
new ones. Whether the former clause of this propo- 
sition is correct or not, the fact stands, that there 
are not, in the seceded States, any governments 
which are, or ought to be, recognized by the gov- 
ernment of the United States as State governments, 
within the meaning of the national Constitution. But 
the national Constitution provides, that the United 
States shall guarantee such governments to all the 
States ; wherefore the effect of the act of secession 
was to place the seceded States under liability to be 



40 SECESSION AND SLAVERY. 

reclothed by " the United States," according to the 
terms of the Constitution. 

In the pamphlet entitled " Thoughts for the 
Times," I showed, still further, what is the opera- 
tion of this constitutional provision. I do not mean 
to repeat what I there said. But let me add, that, 
whether the view taken there and here is correct or 
not, as regards the effect of this particular provision, yet 
it is the view which has all along been entertained 
by what is deemed the sound and conservative part 
of our loyal community, as deducible in some ivay from 
the Constitution. 

Let me explain. During the session of Congress 
which immediately preceded the last (1861-2), Mr. 
Sumner of Massachusetts brought forward, in the 
form of resolutions, a proposition before the Senate, 
that, in effect, the seceded States be deemed to be, 
and held as, territories. This, at all events, is what 
the resolutions were understood by most people to 
mean. But lo, what a storm ! The sound and con- 
servative men, the men who had escaped the poison 
of radicalism and fanaticism, the writer of this pam- 
phlet among the rest (for I am a conservative, and 
no radical or fanatic), condemned the resolutions as 
amounting to a proposed infringement of the Constitution 
of the United States. We all deemed, that it would 
violate the provisions of this instrument to deprive 
the seceded States of their condition as States, and 
compel them to assume the lower status of terri- 
tories; thus overwhelming those persons in these 
States who had not participated in the rebellion, 
and overwhelming unborn and unsinning children, 



DIRECT CONSEQUENCES OF SECESSION. 41 

in the common doom which properly enough follows 
treason, simply because the majority of the people 
had chosen for themselves the traitor's part. We 
agreed, that, for the protection of the innocent, the 
Constitution had guaranteed to these States, not to 
the traitors in them, governments within the Union, 
the same as though the majority had not rebelled. 
Perhaps Mr. Sumner was of the same opinion, and 
his idea was only to use the territorial governments 
as a means to execute the guaranty ; but, be this as 
it will, all of us of the conservative class were dis- 
tinct in this one voice, that the proposition was con- 
trary to the Constitution, which, in our judgment, 
bound the United States to establish in the seceded 
States, not loyal territorial governments, but loyal 
State governments. Now, I do not know how 
others wrought out this conclusion of constitutional 
law, but I derived it from the clause we are here 
discussing. Whether the great conservative mass 
who agree with me, get it from the same clause or 
not, there is no need we should inquire ; for the 
result is the same, come it from one clause or from 
another. We all agree — all but the radicals and fa- 
natics — that the United States, in the prosecution of this 
war against the seceded States, is bound to secure to those 
States republican State governments under the Constitution 
of the United States. 

But, as I showed in my " Thoughts for the Times," 
the former white voters of those States have refused, 
in mass, to carry on such governments. The refusal 
was earliest expressed in their several acts of seces- 
sion ; and, although the white voters did not all 

4* 



42 SECESSION AND SLAVERY. 

concur then in those acts, but a minority of consid- 
erable dimensions opposed, this minority afterward 
gave to them an almost unanimous consent and rati- 
fication. For example, the present Vice-President 
of the Confederacy stood manfully up in opposition 
at first, but he afterward yielded to the secession act 
of his State his cordial support ; and his case is but 
the case of almost all those who constituted the 
original minority. 

Now, there can be no State governments, republi- 
can in form, carried on in these seceded States, ex- 
cept by willing voters. It would be a mockery to 
say, that the republican governments which we seek, 
and which the Constitution demands, for these States, 
are governments in which Jeff. Davis and the rest 
shall be forced up to the polls as prisoners of war, 
and compelled, at the point of the bayonet, to de- 
posit their votes. Therefore we are bound to accept 
such persons, dwelling on the soil, as, under the 
Constitution of the United States, can be made by 
Congress legally competent to carry on State gov- 
ernments, and such as have not declined to carry 
them on, by voting for secession or otherwise sus- 
taining the secession cause ; we are bound to make 
them, by congressional act, competent, — which, of 
course, implies, that they shall be set free, if before 
held as slaves; — and to empower them to estab- 
lish State governments in these States. In deter- 
mining who shall be accepted for the purpose, refer- 
ence cannot be had either to the former or the 
present State laws; for State laws, even the laws 
of States which have not seceded, are never of any 



DIRECT CONSEQUENCES OF SECESSION. 43 

effect, and never to be regarded, as standing in oppo- 
sition to the execution of any provision in the Con- 
stitution of the United States. This is a principle 
so familiar, that it does not need, for support here, 
any citation of authorities ; probably there is scarcely 
a single volume of decisions by the Supreme Court 
wherein there are not cases sustaining this doctrine. 
Everywhere it is received as unquestioned legal 
truth, that the Constitution of the United States, 
and the statutes passed by Congress in pursuance of 
constitutional authority, are supreme over State con- 
stitutions and State statutes; and that Congress, 
when it pleases to act on any power conferred in 
the Constitution, — see Ms Oulloch v. Maryland, 4 
Wheat. 316, to be referred to again in our next 
chapter, — is to pursue the power in its own way, 
without regard to what may be the law, or may not 
be the law, prevailing in any particular State, or in 
all the States. Especially, when Congress is to take 
the initiative in establishing a State government in 
any State, this body must, of necessity, determine, as 
a first step, so much concerning what shall be the 
status of the people of the State as shall settle the 
question of their authority or want of authority to 
vote or otherwise act as participants in the govern- 
ment ; for, without this, there can be no proceeding 
practically taken in the State in pursuance of the 
action of Congress, the question of who shall pro- 
ceed in any matter being essentially involved in the 
direction that the matter be proceeded in. It is of 
the very essence of the direction by Congress in this 
case, that Congress shall fix the status of the negroes 



44 SECESSION AND SLAVERY. 

as free or slave ; and, indeed, the status must be 
established as that of freedom and not of slavery, 
in order to furnish the material for erecting State 
governments where the whites have refused to carry 
on such governments. This material is, in fact, the 
material presented by the States themselves. Congress 
cannot ignore it ; though, if there were other ma- 
terial presented in any sufficient and appropriate 
measure, Congress might, perhaps, select. 

In respect to the seceded States, this proposition 
that State laws shall not stand in the way of an act 
of Congress carrying out a provision of the United 
States Constitution, is true also for a still stronger 
reason than the one above given. We have already 
seen, that, in these States, there are no State govern- 
ments, as recognized by the United States. Thence 
it necessarily follows, that there can be, in these 
States, no State laivs as recognized hj the United States. 
These States stand, as we have seen, in the condition 
of a belligerent toward the United States, for as such 
only has the rebel power been recognized by the 
United States ; but, even as such, there is a differ- 
ence between them and an ordinary belligerent in a 
war between two independent nations. When two 
nations, which have recognized each other's exist- 
ence as nations, enter into a war against one an- 
other, they do not ordinarily withdraw that recogni- 
tion ; but, constitutionally and lawfully, the United 
States declines to recognize the Southern Confeder- 
acy as a nation ; declines, also, to recognize the ex- 
istence of State governments in the several States 
of this Confederacy; therefore, she necessarily and 



DIRECT CONSEQUENCES OF SECESSION. 45 

constitutionally declines to recognize the existence 
of any law there, — other than, perhaps, such laws 
of the Union as are applicable to the circumstances, 
— except the law which attaches to the people as a 
belligerent. 

Ridiculous would it be, then, to say, that the United 
States shall be obstructed in carrying out the pro- 
vision of the Constitution under which this supreme 
power guarantees to States, so situated, the reestab- 
lishment of republican governments, by some pres- 
ent, or past, or supposed future law assumed to exist 
in those States, standing there as a matter of inter- 
nal State regulation ! 

There are, in all departments of life, disagreeable, 
as well as agreeable, duties; and the true philoso- 
pher takes life as he finds it, and is thankful 
alike for the bitter and for the sweet. There are 
disagreeable, as well as agreeable, constitutional du- 
ties ; and the true patriot performs the one and the 
other class with equal alacrity, if not with equal love. 
We of New England remember, that our departed 
Webster used often to speak of this; and when 
some fanatical heretics, who did not pay due respect 
to the church of the Cursers of Ham, showed a dis- 
position to disregard also their duty to the Constitu- 
tion in the matter of returning fugitive slaves, he 
admonished them, that, though it was disagreeable 
to send back to his master a runaway negro, this 
was still a constitutional duty, which should be done 
with alacrity. 

So in the matter now under consideration : the 
free whites of the seceded States have declined to 



46 SECESSION AND SLAVERY. 

carry on governments under the Constitution of the 
United States, but the enslaved blacks have not 
declined ; and, as the Constitution requires us, not to 
reduce these States to territories, but to give them 
republican governments under the Constitution, we 
are compelled, therefore, either to take the blacks, 
or to refuse obedience to the Constitution. This 
is a disagreeable predicament; we Cursers of Ham 
must either permit these children of Ham, upon 
whom our curses have fallen, to exercise the duties 
of freemen, or else we must turn and curse the Con- 
stitution of our country likewise, and trample it in 
the dust. Hitherto it has been apparently the de- 
cision of Congress to do the latter ; because, though 
there have been three sessions of Congress since the 
rebellion broke out, yet at no one of these sessions 
has there been any statute enacted, providing for 
the establishment of these new State governments 
within the seceded States. At the same time it must 
be acknowledged, that, though the President issued 
some proclamations pointing toward, if not looking 
at, an ultimate performance, at some future period, of 
constitutional duties in this matter, Congress did not 
nullify those proclamations by any act or resolution, 
wherefore she gave to them her implied consent. 
And perhaps there are some provisions of Congress 
respecting colored troops and the like, which pro- 
visions amount almost to express consent. 

Still it is true, that hitherto Congress has steadily 
refused to do its full constitutional duty in this mat- 
ter. I do not say, that there was not excuse for this 
refusal ; the country was very reluctant to allow this 



DIRECT COjS 1 tEQUENUES OF SECESSION. 47 

duty to be done; "it was the proper business of 
members of Congress," said the newspapers and the 
people, " to attend to the crushing out of the rebel- 
lion, and not agitate such foolish questions as 
whether the supreme law of the land shall be 
obeyed by the supreme legislature of the land, or 
not. What virtue was there in obedience ? Not 
any," answered most ; but it was pretty well agreed, 
that there tvas virtue in deceiving. 

As Peter once, under a strong temptation, denied 
his Lord and Master, so did we, Cursers of Ham, 
under a temptation equally strong, deny our dear 
Master Slavery. We wanted the votes of sinners, 
we wanted their good opinion, and we wanted a 
proper status from which to enforce the doctrines of 
our church. So we declared, that this blessed insti- 
tution of slavery, this institution of our church, this 
rock whereon the church is built, was, as we deemed, 
an evil and a bad institution ; and that — Master 
Slavery ! wilt thou ever forgive us ? — we should 
gladly, if we constitutionally could, do away with it 
in the seceded States ! But we said, and kept our 
hardened faces unchanging like marble when we 
said, that the Constitution forbade us to do such a 
thing, and that we loved the Constitution, and that 
we meant to obey the Constitution ! We said, that 
the act of secession was a nullity ; some of us added 
also, that the act of war was a nullity ; and all of 
us bleated out, like innocent lambs on the moun- 
tains, that, therefore, the general government had 
no more power to abolish slavery in the seceded 
States now than before secession and war came on ! 



48 SECESSION AND SfcAVERY. 

When, in years gone by, some of the heretics 
showed a disposition not to assist in the constitu- 
tional duty of returning fugitive slaves to their 
masters, they said, that the supposed law under 
which they were required to act was in violation 
of the Constitution of the United States. But they 
were readily answered, that the Supreme Court of 
the United States had pronounced the law to be 
constitutional, therefore the people were bound to 
accept it as such. Mr. Webster in his famous 
7th of March speech said, that, in his judgment, the 
statute of 1850, about to be enacted, was in viola- 
tion of the Constitution, but, as the judges of the 
Supreme Court thought otherwise, though he did not 
agree with them, he should vote, against his judg- 
ment of the Constitution, for the measure, and he 
did vote for it. 

So now, we Cursers of Ham may think, some of 
us do think, as matter of private judgment, that 
nothing can be constitutional which goes against the 
tenets of our church. According to this view, this 
matter of cursing Ham is a thing above all other 
things in this land; any thing in the Constitution 
which interferes with the cursing, is to be taken as 
null; the high religious obligation binds in war 
the same as in peace ; and, as Napoleon chose to be 
whipped, sneaking, like a spaniel, out of Russia, rather 
than receive the help of the serfs of Russia ; and, as 
Pharaoh chose to be overwhelmed, with all his host, 
in the Red Sea, rather than suffer his bondmen, the 
Israelites, to have their liberty; so are we bound, 
by this same higher law of our religion, as Cursers 



DIRECT CONSEQUENCES OF SECESSION. 49 

of Ham, to let the blood of our white sons flow out 
like water, to see the life of our country drowned 
in an unsuccessful war with this rebellion, to give 
up every thing we hold dear as citizens of what was 
erewhile a great Republic, rather than pause, even 
for a moment, in our divine work of cursing Ham. 
In other words, we hold, that it would be a violation 
of the Constitution — the Constitution of our saint- 
ships — should we now stop cursing. 

But the Supreme Court of the United States has 
decided otherwise ; therefore we may listen to the 
admonition of our Webster, speaking to us from his 
grave, and saying, — "Cast away your private judg- 
ments, take the interpretation which the Supreme 
Court has given ; and, should this interpretation 
place you under obligation to perform a disagree- 
able constitutional duty, still you should discharge 
the duty with alacrity, if not with delight." I do 
not propose to enter, in these contracted pages, into 
a minute consideration of the decisions ; .should I do 
so, I should here perform the work, which, as I have 
already stated, I intend for a book, wherein, as it will 
embrace a wider range of subjects than does this 
pamphlet, the authorities can be so set as to shed, 
upon each particular point, an ampler and clearer 
light than can be made to radiate here. 

First, then, the Supreme Court has decided that 
the political department of the United States gov- 
ernment — namely, the President and Congress — 
is to determine what government within a State 
constitutes the " republican form of government " 
guaranteed in the Constitution. It is for this politi- 

5 



50 SECESSION AND SLAVERY. 

cal department to recognize, or refuse to recognize, 
a particular government, within a State, as the true 
State government, and the courts are bound to fol- 
low its decision. In support of this proposition, I 
need only refer again to the case of Luther v. Borden, 
7 How. U. S. 1. 

In the next place, the Supreme Court, in the de- 
cision just mentioned, and in other decisions to which 
it is not necessary I should here particularly refer, 
has given its full judicial sanction to the legal fact 
of the binding obligation, upon the nation, of this 
clause of the Constitution guaranteeing republican 
governments to the States. We have here a perfect 
" squelcher," to use a not very elegant word, for all 
fanatics who would take away from the seceded 
States their right to remain States, and to keep 
within their borders such persons, who have not re- 
belled, as can be made voters, and to carry on in the 
future republican State governments. 

In the next place, the Supreme Court has decided, 
that, for a person to be a voter within a State, under 
a State constitution, it is not necessary he should be 
a citizen of the United States. The common instance 
is that of unnaturalized foreigners, who are voters 
in some of the States. There are more cases than 
one sustaining this point. I need only refer here to 
one ; it is a case in which the matter in respect to 
negroes was particularly considered. There has 
been some discrepancy of opinion, as to whether, in 
the absence of legislation by Congress on the sub- 
ject, negroes born in this country, either originally 
as slaves or originally as free, are, when not held 



DIRECT CONSEQUENCES OF SECESSION. 51 

« 

in slavery, entitled to be deemed citizens under the 
Constitution of the United States. Perhaps the 
weight of judicial authority may sustain the point, 
that they are not so entitled ; at least, let it be so 
assumed for the purposes of this argument. In the 
famous Dred Scott case (Scott v. Scmdford, 19 How. 
U. S. 393), the majority of the court were of opinion 
that they were not citizens; though, on the other 
hand, it is said, that this question was not necessa- 
rily involved in the case, therefore that the words 
used by the majority amount to no more than dicta, 
and do not constitute adjudged law. However this 
may be, the question was not raised, and could not 
be raised, as to what would be the effect of an act 
of Congress declaring the negroes of a particular 
State to be citizens of the United States. Yet the 
material matter is this, that, while the minority of 
the judges deemed free negroes to be citizens, at 
least in some cases, the majority agreed with the 
minority in this, that, in the language of Taney, 
C. J., who delivered the opinion of the majority, — 
" He [the free negro] may have all the rights and 
privileges [including the privilege of voting] of the 
citizen of a State," p. 405, provided the State chooses 
to give them to him. "For," continues the judge, 
" previous to the adoption of the Constitution of the 
United States, every State had the undoubted right 
to confer on whomsoever it pleased the character of 

citizen, and to endow him with all its rights 

Nor have the several States surrendered the power 
of conferring these rights and privileges, by adopt- 
ing the Constitution of the United States. Each 



52 SECESSION AND SLAVERY. 

State may still confer them upon an alien, or any 
one it thinks proper, or upon any class or descrip- 
tion of persons." Therefore, of course, in those 
cases in which Congress is called upon to determine 
who shall be the voters of a State, in organizing a 
new State government, it may exercise this discre- 
tion ; doing, when it thus acts instead of the State, 
whatever the State might do if acting for herself; 
the same as Congress has sometimes done, in allow- 
ing, for instance, aliens to vote in the territories, 
both in the carrying on of the territorial govern- 
ment, and in the elevating also of the territory into 
a State. 

In the next place, the Supreme Court, like all the 
other judicial tribunals, recognizes the obligation of 
law as more binding and authoritative upon the citi- 
zens and upon the government, — especially if the law 
is that supreme law which is called the Constitution, 
— than are the peculiar religious tenets of any sect. 
Though the Cursers of Ham may know, in their 
consciences, that, in the presence of Him who is no 
respecter of earthly potentates or earthly rulers of 
any kind, the faith of the Cursers sits supreme over 
the Constitution, having the right to control it and 
all things else pertaining to this country, still the 
Supreme Court and the other courts hold themselves 
bound by the lower law of the Constitution in ad- 
ministering justice, notwithstanding the Cursers, 
whom the judges all respect, pay their superior alle- 
giance to the hio-her law of the Church. Conse- 
quently, though a Curser may know, in his con- 
science, that a neoro is not fit to be a voter, the 



DIRECT CONSEQUENCES OF SECESSION. 53 

Supreme Court knows it not; it has laid down, as 
the law of the land, directly the opposite proposi- 
tion. 

In the next place, while the Supreme Court ac- 
knowledges, as do all the other courts, that, in 
proper circumstances, Necessity shall be received as 
giving the law, — or, in other words, that the rule 
of necessity is sometimes, because there can be no 
other rule, the rule of law, — yet the Supreme Court 
never accepts the doctrines of the Cursers, any more 
than the doctrines of the lower and less respectable 
sects, as furnishing the gauge and measure of the 
necessity which shall govern instead of the letter of 
the law. Therefore, though a Curser may not like 
to see negroes exercising civil rights, this being a 
thing contrary to the psalm of the whip, yet the 
Supreme Court, while it may regret that there 
should be any pauses in this psalm, feels still com- 
pelled to say, — " The psalm is not a thing which 
cannot be barred and stopped by the Constitution 
of the United States." The result of which is, that, 
as already seen, since the Constitution requires the 
United States to guarantee republican forms of gov- 
ernment to the seceded States ; since those States 
have not now any governments which the political 
department of the United States government has 
recognized, or can recognize, as coming within the 
terms of this guaranty ; since the whites in those 
States have refused to carry on such governments; 
since the blacks have not refused; and since, in law,. 
the blacks may, just as well as the whites, be em- 
powered to execute the mandate of Congress for set- 

5* 



54 SECESSION AND SLAVERY. 

ting up the guaranteed governments there, — the 
Supreme Court cannot accept the peculiar religious 
tenets of the Cursers as a sufficient excuse, justify- 
ing a refusal by Congress to authorize the blacks. 

In the last place, let it be impressed once more 
on the reader, that, since there are in the seceded 
States no governments, regarded by the United 
States as the State governments of those States, it 
comes within the adjudications of the Supreme Court, 
that Congress should not only settle beforehand the 
question of who shall be voters therein, to carry out 
its act for establishing new State governments there, 
but what also shall be the principles on which those new 
State governments shall rest. This latter course of legis- 
lation has been adopted, always with the approba- 
tion of the Supreme Court, when a State government 
was to be organized, for the first time, in a territory. 
Thus, when Louisiana was to be admitted as a State, 
the national legislature provided, by its act, both for 
the establishment of the new government, and for 
the insertion of certain specific matters in the con- 
stitution to be framed for the State ; and the Supreme 
Court held, that the latter, as well as the former, lay 
within the congressional power. Said Catron, J., in 
delivering the opinion of the court : " All Congress 
intended, was to declare in advance, to the people 
of the territory, the fundamental principles their constitu- 
tion should contain; this was every way proper under the cir- 
cumstances : the instrument having been duly formed, 
and presented, it was for the national legislature to 
judge whether it contained the proper principles, 
and to accept it if it did ; or reject it if it did not." 



DIRECT CONSEQUENCES OF SECESSION. 55 

Permoli v. The First Municipality of New Orleans, 3 
How. U. S. 589. Now, although I do not concur in 
the view, accepted by many persons, that, because 
there are no State governments in the seceded 
States, as recognized by the United States, therefore 
they are, in law, territories, to be held and governed 
as such, instead of being reclothed, under the guar- 
anty clause of the United States Constitution, in 
new governmental State garments, — still it is pal- 
pable to me, as it must be to all, that the doc- 
trine just cited, as held by the Supreme Court, 
applies to the case of these denuded States, crying 
through the guaranty clause for the new Union 
dress. If the seceded States are indeed territories, 
then, of course, the doctrine applies ; if they are not 
territories, but are entitled to carry on State govern- 
ments again, whether their claim of right to do so 
comes through this guaranty clause or through any 
other clause, or from any other source in or out of 
the Constitution, the doctrine equally applies. If, 
for any reason, these seceded States have not now 
governments within the Union, and if the United 
States has the right, whether coupled with the duty 
or not, to cause governments acknowledging alle- 
giance to the Union to be established in these States 
(a point which the Supreme Court, as we have seen, 
has already decided in favor of my argument), then, 
whichever of these positions we take, conducting to 
the result that the present war is no violation of the 
Constitution of the United States, the doctrine of 
our decision applies to the case. And according to 
to this doctrine, — the doctrine of the Supreme 



56 SECESSION AND SLAVERY. 

Court of the United States, — though Congress 
should not feel bound by the guaranty, as a matter 
of duty, to establish new State governments in the 
seceded States, still, in authorizing the establishment 
of such governments, it would be competent for 
Congress, I here employ the language of the court, 
" to declare, in advance, the fundamental principles 
their constitutions should contain ; " and, in the fur- 
ther language of the court, this proceeding would be 
" every way proper under the circumstances." The 
direction, then, might be, that, under the new con- 
stitutions and governments, the negroes should be 
freemen, and not slaves. And since the negroes had 
assisted the United States in putting down the rebel- 
lion, some of them by active labors, and others by 
keeping quiet and abstaining from servile insurrec- 
tion, which might rebound unfavorably against the 
cause of the Union, all in pursuance of the request 
of the United States government, as contained in the 
Emancipation Proclamation issued by the President, 
and in other acts and orders proceeding from com- 
petent authority, — since, I say, the negroes had 
done this under the promise of universal freedom in 
all but certain excepted parts of the seceded States, 
then, if Congress failed to provide, in establishing 
the new State governments, for the perpetuity of 
their freedom, thus repudiating the debt contracted 
with unread and confiding men, it would be also 
" every way proper, under the circumstances," for all 
the dwellers on the earth, having souls of honesty in 
them, to hoot and deride, and then to trample our 
nation out, as unfit to live beneath the sun ! 



DIRECT CONSEQUENCES OF SECESSION. 57 

The only matter, therefore, on which there is any 
room to hang a doubt, is, not whether Congress has 
the constitutional power to secure freedom to the 
slaves in the seceded States, but whether, had not 
the Emancipation Proclamation been issued, she 
would even then have any liberty to decline. As 
the question stands since the issuing of the proclama- 
tion, the only difference of opinion which can arise 
is, whether, if she now declines, she will, by the 
declinature, merely break the faith of the nation, or 
whether she will break also the Constitution. Ac- 
cording to the view taken in these pages, it would 
be in the discretion of Congress to liberate the 
slaves or not, as a mere act under the Constitution 
upon any ordinary case of a State ceasing to have a 
State government; but, when the reason of this 
ceasing was, that the whites had refused to carry on 
such a government, the circumstances lying outside 
the Constitution compelled Congress to accept the 
blacks, instead of exercising a choice between them 
and the whites, thus making the blacks free. 

We see, therefore, what is the penalty provided 
in the Constitution for secession ; it is, that slavery be 
abolished in the seceding States. These States volun- 
tarily incurred the penalty, — Who stands forth to 
say, that it cannot be constitutionally inflicted? 

It is not for me, with prophetic horn, to usher in 
the future, whether of weal or of woe. But if I 
were the most black-hearted fiend this universe con- 
tains, I could not call for a more damnable doom to 
fall on him whom I would torment, than I believe 
will be his doom, who, professing to be read in the 



58 SECESSION AND SLAVERY. 

laws of the land, stands now up with brazen face 
and declares, before a listening world and a listening 
and recording Heaven, that it would be right and 
just, and a thing in accord with the Constitution of 
our country, to proclaim a peace to the rebels of the 
South, based upon a continuation of the fact of 
slavery over those negroes of the South to whom 
the earlier Proclamation of our chief magistrate, 
issued with no dissent from Congress, promised the 
boon of freedom upon their remaining quiet during 
these weary months of war, and not rising against 
their masters. If any such man shall read these 
lines, let me say to him, not in the spirit of prophecy, 
for the scroll of the prophet is not given me to 
unroll, but in the more earthly spirit which discerns 
a common effect lying within its cause, that, whether 
there be in the hereafter a lake burning with fire 
and brimstone or not, there is, alike in the present 
and in the future, a Soul of the Universe which 
burns with a fire more consuming than the fire of 
brimstone, around those forlorn spirits, who, on 
earth, put out the false tongue to cleave to the 
ground the feeble ones who have no power to 
resist. 



SOME RADICAL VIEWS CONSIDERED. 59 



CHAPTER III. 

SOME RADICAL VIEWS CONSIDERED. 

The last chapter embraces a pretty wide view, and 
in some respects a complete one, of the doctrine, 
that, since the United States is lawfully undertaking 
to restore the seceded States to their old position of 
States standing clothed in State governments within 
the Union, — since it is the duty of the United 
States to restore them, — since the duty carries with 
it also the power, including the power over the 
means, — and since, in the actual facts existing, this 
power can be exercised only in the way pointed out 
in the last chapter, namely, as governments in 
States within the Union must be conducted by will- 
ing; voters, as the whites in the seceded States are 
unwilling, and as the blacks are willing, by accepting 
the blacks, together with any whites who may not 
have expressed their unwillingness, and clothing 
them with the needful authority, — therefore the 
law (I am not speaking now of the theology of the 
Church of the Cursers), the law requires the United 
States thus to accept and authorize these blacks, 
and these few loyal whites. 

Whether this doctrine be derived from the clause 
in the Constitution guaranteeing to the States re- 



CO SECESSION AND SLAVERY. 

publican forms of government (interpreted to mean 
such republican governments as the Constitution of 
the Union has particularly prescribed for the States), 
or whether the duty of restoring to these States 
such governments be found in some other clause, or 
gathered from the entire instrument, or drawn out 
from among those general principles of government 
which lie outside of the instrument — this is imma- 
terial to the argument ; the result is the same, be 
the origin of the obligation, or the right, one thing 
or another thing. I have traced the doctrine, the 
duty, the obligation, the right, whatever we may 
call it, to the clause mentioned, because I believe 
this to be its true source ; yet I wish also to impress 
the reader with the other truth, that, should I be 
found to be mistaken in this, not one grain will 
thereby be lifted from the weight of the main ar- 
gument. The United States is now engaged in a 
war, holden by the Supreme Court to be a constitu- 
tional war, waged for the purpose of bringing back 
the seceded States into the Union. The Constitu- 
tion, therefore, to put the matter in its mildest way, 
authorizes the carrying on of the war by such means 
as the circumstances of the case show to be available 
for the attainment of the end. The end is the 
actual exercise of the elective franchise in these 
States by willing voters ; who are willing, who are 
unwilling, we all know. Shall we, then, take the 
willing, and thus reasonably exercise the right ? Or 
shall we refuse to accept the willing, while we fight 
the unwilling, and thus spurn the very thing we 
seek? 



SOME RADICAL VIEWS CONSIDERED. 61 

But if this war is a lawful war, it is a war also 
accompanied with a dutjj. No nation can lawfully 
enter into a war, unless duty leads the way This 
nation is, therefore, under obligation, under the 
obligation of duty, — consequently under the obli- 
gation of law, either the law of the Constitution or 
the law of nations, or the law of nature, - under 
the obligation of some kind of recognized law, to 
carry on this war ; and all but fanatics agree, that 
the sought-for end of the war is the establishment 
m the seceded States, of State governments whose 
officers shall be sworn to support the Constitution of 
the United States, and shall be elected by willing 
voters. Who in these States are willing, who are 
unwilling, we all know. Shall we accept the will- 
ing, and thus discharge our legal duty? Or shall 
we reject the willing, while we fight the unwilling? 
It is familiar truth, that every community, large 
or small, is divided into essentially two different 
classes of people. The one class is composed of 
those who cling to the established law, to what has 
been laid down and walked upon before; the other 
class, o£ those who are ever attempting something 
new, under the hope of making the future better 
than the past. The former class are called conserva- 
tives ; the latter, radicals. 

The reader has already seen, in these pages, that, 
whichever class is really the nearer right, the writer 
belongs to the class of conservatives. I cannot see 
the utility of unloosing the fixed and the stable 
which we have always deemed to be the true, and 
taking m the place thereof something new, which is 



62 SECESSION AND SLAVERY. 

merely experimental, simply because some untried 
theory says it is better than the old. Therefore it 
is, that I hold to the duty of obeying the law of the 
land, the law as actually written and expounded by 
the governmental powers entitled to expound it, 
instead of breaking the law out of reverence to 
some glittering fancy, and upon motion of our own 
individual wills. And even where the law is to be 
changed, — for change is written on all things, both 
in the earth and in the sky, — I am still opposed to 
novel experiments, and the following of mere spe- 
cious theories. In such a case, I would try no legal 
innovation, however fine. I would select, out of 
those laws which God has used ever since his crea- 
tion rose into being, the particular law which suited 
the altered circumstances, and adopt it. Should I 
find that the law sought was embraced in some tenet 
of the Cursers, I would enact the tenet into law; 
but, until the tenet was so enacted, though I might, as 
a religious being, pay my vows to the Supreme One 
in the halls dedicated to the worship of God after 
the forms of the Cursers, yet, as a citizen of the 
United States, I should obey the existing law of the 
land, rather than the law which I supposed ought to 
exist ; in other words, I should not set up the tenet 
above the Constitution of the country, as expounded 
by the Supreme Court. 

Such as these are the reasons which lead me to 
urge upon the reader an exact attention to the law 
as it stands written, in distinction from the law 
which we, as Cursers of Ham, might wish to have 
written. I know, I cannot but feel at every stroke 



SOME RADICAL VIEWS CONSIDERED. 63 

of my pen, that, in the present circumstances of the 
country, there is a deplorable want of harmony 
between the claims of our Constitution and the de- 
mands of our religion. It is not strange, therefore, 
that radicalism should clamor for the lifting up of 
the Church, and the putting down of the Constitu- 
tion. The true view, however, is, — so, at least, the 
matter appears to me, who cannot see the blessings 
promised to flow from the establishment of radical 
doctrines, — that, inasmuch as the claims of religion 
should not be disregarded, the Church should invite 
into convention with her the whole sinning country, 
th >n, if she can convert the country over to her 
views, let a new Constitution for the country be 
adopted ; but, while the old Constitution stands, let 
it be obeyed. 

Still, as radicalism is the form of things which 
most prevails among us, I cannot well avoid giving, 
in this pamphlet, some space to the consideration of 
a few of the more prominent radical views. In my 
"Thoughts for the Times," I briefly spoke of the 
radicalism of the administration of the late Presi- 
dent Buchanan, which administration set up some 
glittering theories, as to how the rebelling States 
were to be won back, in the place of obeying the 
law of the land which required, that the heavy arm 
of the nation's power should be laid upon the in- 
cipient rebellion to smother it before it had grown 
strong. I am now about to speak of what happened 
more under the direction of the Republican party, 
— that is, it seems to have so happened, simply be- 
cause the Republican party was in power j but it 



64 SECESSION AND SLAVERY. 

was done with the concurrence also of the Demo- 
cratic party, and in compliance with its demand. 

It is this, that, as already observed, the national 
Congress failed, session after session, to provide for 
the establishment of new republican governments in 
the seceded States, in violation of the clause of the 
Constitution we have been considering, in conse- 
quence of some higher-law notions which seem to 
have pervaded that body and the public at large. 
Had there been a disposition simply to follow the 
law of the land, there would have been passed an 
act authorizing all persons in the seceded States, 
not disloyal to the general government, — includ- 
ing, of course, those who were theretofore held as 
slaves, — to organize, as fast as the President, who is 
commander-in-chief of the army, should deem pru- 
dent and practicable, new State governments in 
place of the old ones which the rebels had cast off. 

But this course, though it was what the law of the 
Constitution required, was rejected ; the reasons for 
the rejection being various. 

Many, perhaps the majority, of those who partici- 
pated in thus violating the Constitution, were un- 
doubtedly influenced therein by their strong attach- 
ment to the doctrines of our Church of the Cursers. 
These persons may not have been openly members 
of the church ; they may even have denied the 
church, as did Charles II. of England, who partook 
of its extreme unction only, and of this merely in 
private, when the world was shut out, and death 
and the priest were barred in with him. They 
may even have pronounced as many oaths against 



SOME RADICAL VIEWS CONSIDERED. 65 

the Church of the Cursers as had Charles II. against 
the Church of Rome; for the crown of political 
demagogism in this country is office, - in the heaven 
which the church promises to her followers, all wear 
crowns,- and there have been lovers of the crown 
here, the same as in England. Where heretics vote, 
whether a man shall avow his church connection, 
or not, depends sometimes on the strength of his 
love o?-the crown. But if the Cursers of Ham 
nourish as greenly in heaven as they do in this coun- 
try, undoubtedly God, who pities the infirmities of 
his saints, will, when they get to heaven, and he sees 
the tear of repentance in their eyes, take it and 
therewith wash away the stain from their souls 

Another reason for the refusal to obey the Consti- 
tution was this: The fact was plain, that, whatever 
law should be enacted by Congress, it could not be 
carried into practical effect in the establishment of 
new State governments in the seceded States, faster 
than the victorious Union arms cleared the way tor 
the work. Now, there were persons who said,— 
"Why should I obey the Constitution, unless I can 
see the uses of obedience clearly attendant upon the 
act f " And they thought, that, by putting off obey- 
ing long enough, they might perhaps escape the 
duty to obey altogether. 

This form of radicalism is one of the most com- 
mon forms; it is known in every country. With 
us, the business of Congress is to enact laws; the 
business of the army is to fight. And the private 
opinion of any man, that there will be no immediate 
use for a law which the Constitution requires Con- 



66 SECESSION AND SLAVERY. 

gress to enact, " because," saith the private opinion, 
" the army will not get through with its work of 
fighting until another Congress sits, is no legal an- 
swer to the legal duty to enact the law. I have 
already recognized necessity as excusing the perform- 
ance of a duty ; but here there is no necessity oper- 
ating in the case. The rebel bayonets may obstruct 
the passage of the army, but they cannot obstruct 
the passage of statutes, so long as no rebel power 
holds a seat in Washington, and our law-makers do 
hold seats there. There can be no ranker radical- 
ism than that which says: "My private judgment 
as to whether it will do any good to obey the laws 
shall stand in the place of obedience." When this 
kind of radicalism becomes universal, there is an 
end of all order, and anarchy is king. 

" Then," says the radical, " let me shape the matter 
thus : Inasmuch as the seceded States are inhabited 
by men who have declined to carry on republican 
governments within the States, and by men who 
have not declined, I deem it to be best to direct, 
that the new governments shall be conducted by the 
former class, the same as were the old ones. When 
the former class are subdued," continues the radical, 
u they will be obliged to set up the new governments, 
and they will be more willing to do it if they can at 
the same time trample the latter class down as here- 
tofore ; therefore, as I must do something, I shall 
follow the dictate of policy, thus putting the rule 
back into the hands of the men who have renounced 
the right to rule, and followed up their renunciation 
by the commission of treason." 



SOME RADICAL VIEWS CONSIDERED. 67 

Well, I am inquiring after the law, — Will the 
radical tell me by what law, in this country, traitors 
are to be made office-holders and voters, and espe- 
cially to the exclusion of men who have never been 
disloyal? I know there is such a thing as pardon, 
but any attempted remission which precedes or ac- 
companies the offence is not pardon, it is license. 
Does the radical pretend, that it would be competent 
for Congress to enact as follows, — " Whoever com- 
mits treason in an attempt to destroy the Constitu- 
tion and government of the United States, shall 
ever thereafter be deemed innocent of any offence, 
and shall still be entitled to all the privileges of an 
unoffending citizen ? " 

At the time, therefore, when the Constitution re- 
quires the enactment of a law for giving to the 
seceded States new State governments, those who 
led the States out of the Union, so far as States can 
go out, — that is, who denuded them of their former 
State governments under the Constitution, — are 
rebels in arms. Yet the radical says, " Let the law 
provide for making them the voters, and for exclud- 
ing from the ballot, and even from personal liberty, 
those who have never rebelled." 

Well, I cannot find any clause in the Constitution 
sanctioning such a procedure ; I can find nothing in 
any decision of any judicial tribunal sanctioning it ; 
nothing in the law of nations; nothing anywhere, 
unless it be among the mysterious and unwritten 
things belonging to our Church. On the other hand, 
such a procedure — I mean, of course, such a pro- 
cedure taken while no pardon has gone out to the 



68 SECESSION AND SLAVERY. 

rebels — would be contrary to all the laws and all 
the usages of the civilized world ; contrary to the 
reason of the case; contrary to the spirit of our 
Constitution ; and contrary to any fact practicable, 
since it would be only providing that the rebels 
might do what they had refused to do, and volun- 
tarily vote under the United States Constitution at the 
point of the bayonet ! 

" Then," says the radical, " one more course remains 
for me. There are a very few white persons in the 
seceded States who have not taken part in the gen- 
eral treason of the whites there. I will vote to or- 
ganize an oligarchy in those States ; making, in 
this new form of government, the few loyal whites 
the rulers both over the disloyal whites, and, with 
the title of master superadded, over the blacks also." 
This proposition sounds well, but it is not the propo- 
sition of the Constitution. By the Constitution, the 
United States is not to guarantee to the seceded 
States oligarchies, but republican forms of govern- 
ment. It might be doubted, as indeed it has been, 
whether, as an original question, any government is 
republican wherein a large proportion of the people 
are slaves; but, assuming, as I cheerfully do, that, 
under our Constitution, interpreted by the compari- 
son of clause with clause, and by bringing the light 
of the circumstances in which it was formed to illu- 
mine the whole, such a government for a State may 
answer the description of " republican," as the word 
is used in the clause now under consideration, still the 
oligarchy proposed by our radical is a thing entirely 
different from this. The circumstances which shed 



SOME RADICAL VIEWS CONSIDERED. 69 

the illuminating light now, are diametrically opposite 
to those in which the Constitution was originally 
formed. The illuminating other clauses point, in this 
instance, differently from what they do in the other ; 
and there is a difference between a government car- 
ried on by a mere handful of the whites, and one 
carried on by the mass of them. If the government 
proposed by our radical is to be deemed, under the 
circumstances now existing, republican, then there is 
no such thing known on earth as a government 
which is not republican. • 

At the same time it must be acknowledged, that 
there is laid up among the mysteries of the Church 
of the Cursers, one gleamy, blessed tenet, out of 
which, when it is gently pressed, there flows some- 
thing milky and white, bearing a resemblance to 
this white doctrine, as thus in-milked by our radi- 
cal babe ; and, in fairness, I cannot pass on without 
calling the reader's attention to it. Not easy is it 
for sinful speech to describe a thing so saintly ; but 
I will try, and see what words can do on this occa- 
sion. Turning, therefore, this milky whiteness into 
speech, it flows thus : " A negro is an heir of heaven, 
but he cannot be an heir of earth ; that is, though 
he can have a seat among the blest above, he has, in 
the language of the earthly law, no ' hereditable ' 
quality below. Therefore a negro is a thing alto- 
gether of the sky ; he is not taken into the ' account ' 
here ; he is not ' counted ' here ; he is heaven's 
4 treasure,' not earth's ; he is to be considered as an 
outlaw below, for the glory of the negro is to shine 
above." 



70 SECESSION AND SLAVERY. 

When this heavenly milk is turned into earthly 
law, the result is, that, according to the milk, a negro 
is nothing in law ; therefore, though there should be 
in a State two hundred thousand loyal negroes, and 
twenty loyal whites, the case must be considered as 
though there were but twenty loyal persons, the 
negroes not being counted. 

Now, whether, not counting the negroes, the 
twenty loyal whites could in such a case carry on 
what would amount to " a republican form of gov- 
ernment," in a State, within the meaning of the 
phrase as used in the Constitution, I shall not here 
undertake to argue. And the reason why I do not, 
is, that, by the Constitution, negroes are not nothings, — 
negroes do enter into the account, — negroes are counted. 
That the radical babe is right, looking at the matter 
as one pertaining to the mysteries of the Church, I 
cheerfully concede ; but the object of this pamphlet 
is to consider the question as one pertaining to the 
Constitution of the United States. Very difficult do 
I find it, so to separate the one from the other of 
these two things, as to enable the church members, 
among my readers, to look at the constitutional doc- 
trines without having their eyes made at the same 
time blind by the simultaneous glare emitted from 
the tenet. 

I would pause, and explain how it is, that, under 
our Constitution, negroes are not nothings, negroes 
are taken into the account, negroes count, and the 
like ; but I cannot in this pamphlet say every thing 
which might be said, so, asking the reader to consult 
the Constitution for himself, I pass on. 



SOME RADICAL VIEWS CONSIDERED. 



71 



Suppose the radical doctrines which I have thus 
far discussed in this chapter are all admissible, still 
they go only to show, that it is in the discretion of 
Congress, if its members please, not to give freedom 
to the slaves in the seceded States. The power to 
exercise the discretion the other way, and to grant 
this freedom, still remains. 

And there is another point, which acids to the 
force of this. It has been said, and so often said as 
to have become wrought into the beliefs of many of 
the people as though it were a part of the Constitu- 
tion, that the Constitution and government of the 
United States were made exclusively for white men, 
not at all for negroes. To me, I confess, it seems 
somewhat strange, that a Constitution and govern- 
ment should have been established on this continent 
for the benefit of a part only of the native-born people, 
on the one hand ; and, on the other hand, for the 
benefit, 1n conjunction with this part, of all the 
people of Europe. Because it is a notorious fact, 
that, when any person comes here from Europe, he 
is, after a short residence, and a process of natural- 
ization, entitled to substantially all the privileges 
flowing to the best class of citizens born in this 

country. 

But not to debate this matter, supposing the 
proposition above stated to be correct, it follows, 
that our Constitution and government are griev- 
ously antagonistic to our great and honored Church 
of the Cursers of Ham. During most of this war, 
we have been giving the life's blood of the white 
part of our nation to be drank up by treason steel, 



72 SECESSION AND SLAVERY. 

in order that the negro might stand especially pro- 
tected, and especially blest, under the folds of the 
Constitution. If the Constitution was not made for 
him, in God's name, why not let him be shot at and 
bayoneted, instead of my son or my brother? I 
had supposed that the Constitution was deemed to 
have been made, — such indeed is the doctrine prac- 
tically enforced by the church, enforced under the 
penalty of its anathema, excluding him who should 
disobey from association with the sanctified here, 
and from the heaven of office there, — much more 
for negroes than for white men ; else, why do we 
imperil the freedom of the whites in order that we 
may continue to the negroes the full blessings of 
slavery as of yore ? 

Not made for the negroes ! Rejoice, all ye sons 
of Ham, the day which you seek for, but ought never 
to find, wherein you shall be free, has come ! It was 
because we thought the Constitution was made for 
you, Sons of Ham, that we were ready to pour 
out our money, our blood, our good name, our hon- 
esty, and our truth, to be licked up by the dogs of 
war, and by the whelps which guard the courts of 
the despots of the earth, rather than yield to the 
necessities of the times, and permit you to join with 
us in one common effort to subdue the foe of our 
country. So, when we said the Constitution tuas 
made for you, more than for the white man, and 
that we should violate it if we did not spurn you 
from the ranks of the free, we lied — did we ? and 
the Constitution, after all, was not made for you ! 

Rejoice, then, white men ! If the Constitution 



SOME RADICAL VIEWS CONSIDERED. 73 

no longer requires us to give the blood and the 
treasure of the country to the work of keeping down 
the negroes of the seceded States, but leaves this to 
the care of the Church alone — rejoice ! Whenever 
this proposition comes to be believed throughout the 
country, whenever it is generally understood in the 
loyal States that the Constitution was made solely 
for white men, and not at all for keeping negroes in 
bondage, not only will this war cease, but a brighter 
and happier peace will descend upon our country 
than she ever knew before. 

Concede, then, that the Constitution was made 
solely for the whites, not at all for the blacks, and 
we have arrived at the conclusion to which I have 
been all along striving to conduct the reader. It 
still stands true, for so it has been decided by our 
highest tribunal, and by the practice of some of 
the States, that, for the benefit of the whites, negroes 
may be permitted to participate in carrying on State 
governments. For the benefit of the whites, then, 
they may spring up as freemen in the seceded 
States, and hold these States against the waves of 
treason. For the benefit of the whites, they may 
mingle their blood with the blood of the whites on 
the battle-field. And I hope I shall not be accused 
of any disrespect to those holy members of our 
Church of the Cursers, who, to preserve to the 
negroes' souls the blessings of the discipline of 
slavery on earth, are ready to sacrifice their own 
souls and the souls of their children on the altar 
of slavery, when I address an observation to an- 
other class, whose motives are not so pure. You, 



74 SECESSION AND SLAVERY. 

then, who so hate negroes that you are unwilling 
they should fight with us to preserve the freedom 
of our country of whites, on any terms which shall 
leave them free afterward, should rejoice that the 
negroes are not such graceless, brainless, scoundrels 
as yourselves ! Should they not be willing to make 
themselves free, except on conditions which shall 
leave you slaves, where will you stand, where will 
our country stand, hereafter ? 

Men may say what they will in their moments of 
passion, yet every man of cool brain knows, that, if 
the negroes and the whites in the seceded States join 
hands, and the negroes do not come to our help, the 
permanent restoration of the Union is as impossible 
as it would be now to reach out and draw down the 
moon to mingle her masses with those of our earth. 
I am not speaking of what may be done by way of 
temporary conquests. I am speaking of a perma- 
nent restoration of the Union. And those few white 
men of the South whose love for the Union surpasses 
their love for the Church, know this truth quite as 
well as do you, Mr. Reader, or as I do. And when 
another class of the white men of the South, namely, 
those who, not possessing the heroism of martyrs, 
desire peace and worldly prosperity more than they 
desire either the prosperity of the church in her 
present unfoldings under the care of the rebel gov- 
ernment, on the one hand, or the restoration of the 
Union, on the other hand, see the loyal country 
standing clearly, and, as they believe, immovably, 
on ground which shall attach to us the mass of the 
blacks of the South, and shall not put the present 



SOME RADICAL VIEWS CONSIDERED. 75 

rebels into such a position as will enable them to 
domineer over either the blacks or the minority of 
the whites, — when, in short, they perceive that civil 
justice is to be administered in their States in place 
of the religious discipline of the Cursers, they will 
then, but not before, discover safety in a full and 
unreserved espousal of the cause of the Union. 

It is not within the purpose of this pamphlet to 
enter into a discussion of questions of mere govern- 
mental policy ; yet I cannot forbear adding to what 
I have just said, the one thought, that, if the restora- 
tion of the Union means simply the lifting up of 
the old stars and stripes to float over the temple of 
the Cursers, while the priests within still carry on, 
protected by the Union arms, the same baptism of 
blood which during these two and more years of the 
war has been filling heaven with the souls of true 
lovers of the Union, — what hope can now light up 
a Union man's face at the South, even though the 
face be white ? Why should any white man there 
raise his hand against the powers which now be, if 
the only thing which the Union army is to effect is 
to change the print-block whereon an overhanging 
rag is to be made red ? If encouragement is to be 
given to men at the South in espousing the cause of 
the Union, it must be in the form of some reason- 
able assurance of protection for the future. The 
northern branch of the Church of the Cursers de- 
mands the performance of a thing impossible, — im- 
possible, because the two parts of the thing are 
directly repugnant one to the other; namely, that 
Southern white men shall be encouraged to espouse 



76 SECESSION AND SLAVERY. 

the Union cause, and that at the same time they 
shall be set where they see the power of their own 
neighbor-haters of the Union descending slowly and 
surely upon them to crush them to death! 

I must mention one more point upon which radi- 
calism, disregarding the law, has wrought much mis- 
chief. It is this. The law, as all who are familiar 
with such matters know, provides, that, as stated in 
brief in the last chapter, whenever a discretionary 
power is given to a man, or to a body of men, the man 
or the men who are to exercise the power, in distinc- 
tion from any third person or persons, must deter- 
mine the mode of its exercise. In pursuance of this 
principle, it is held by the Supreme Court, that, when 
Congress would act upon any power conferred upon 
this body by the Constitution of the United States, 
it is for Congress to select her own methods whereby 
she shall carry out the power. For authority sus- 
taining this position, see, among other cases, Mc Cul- 
loch v. Maryland, 4 Wheat. 316. This is the case in 
which the Supreme Court held the Bank of the 
United States to be constitutional; and, although 
the opinion did not satisfy the judgment of .the en- 
tire country upon the main point, I am not aware 
that any doubt was entertained of the correctness 
of this proposition, which is mere matter of familiar 
law. Said Marshall, C. J., speaking for the whole 
court : " The government which has a r^ht to do an 
act, and has imposed on it the duty of performing 
that act, must, according to the dictates of reason, 
be allowed to select the means." If this privilege 
of selection were not given to it, but to another, the 



SOME RADICAL VIEWS CONSIDERED. 77 

other might, by refusing to select, defeat the act 
So if our seceded States, speaking through the same 
voters whose mandate was executed in the passage 
of their secession ordinances, were to select the 
means whereby Congress should clothe them anew 
in State governments under the Constitution of the 
Union, how long, pray, would they be in making the 
selection? And, as they have not selected, shall 
Congress wait, or select for them? .\ 

The radical says, "Let Congress ask, not the oya 
neople of the seceded States, but the same disloyal 
voters who took the States out of their position in 
the Union, to prescribe the time and the means by 
which these States shall be brought back ; for con- 
tinues the radical, "I do not like the law which per- 
mite the party doing an act, in pursuance of a duty 
expressed in general terms, to do it in his own way. 
I think, that, if a thief is to be caught, the first duty 
of the officer put on his track ought to be to inquire 
of the thief, how and when he will please order the 
catching process to be executed." 

Now, it does happen, that, in our tree country, 
when a man has committed no offence against the 
laws, he goes and comes at his own pleasure ; though, 
it is also true, that, if he has offended, be is to be 
eaught by such means as the administrators of he 
laws may direct. There are persons who deem, that 
any catching of an offender is a wrongful violence 
done to his liberty. But I am not aware that any 
man has claimed, until our green young radical 
sprang up. since this war began, that it is the right 
of the thief to direct the steps of his pursuer, while 



78 SECESSION AND SLAVERY. 

at the same time it is the right of the pursuer to 
catch the thief. 

Therefore, according to the law of the land, differ- 
ing herein from those doctrines of the Cursers into 
which our green young radical has been just bap- 
tized, when Congress proceeds to execute the guar- 
anty of a republican State government to seceded 
States, she is not to ask, before she takes her steps, 
those persons in the States who committed the act 
of secession, by what means the act shall be undone, 
but she is to choose, so far as she can, her own way. 
And she is, therefore, to determine which of the 
various forms of republican government known to 
our Constitution shall be established in these States. 
Were it not for the special facts of the case, she 
might, perhaps, elect that the new governments be 
those wherein slavery is protected ; but, as we have 
seen, these special facts preclude her from this choice, 
since the only willing voters existing in any suffi- 
cient numbers are those who were formerly slaves; 
and, when they are intrusted with the duties of 
freemen, there is not left in the States the material 
out of which to make slaves; unless, indeed, the 
democratic doctrine of " rotation in office " should 
prevail, and the late masters should take their turn 
in sitting, in the place of the blest, under the drop- 
pings of the Cursers' sanctuary. 

In ordinary circumstances, the people of a State 
proceed of their own motion to dress themselves 
in such republican garbs as they choose ; hence we 
say, that they determine for themselves what their 
domestic institutions, as slave or free, shall be. But 



SOME RADICAL VIEWS CONSIDERED. 79 

the case of secession is not the ordinary one ; there- 
fore in this case, as we have seen, since Congress is 
to take the initiative and dress the State, she, and 
not the seceding rebels, determines the kind of dress 
to be put on. Now, the green young radical here 
presents himself, grown into the full proportions of 
a bloated demagogue, and he speaks and says: "It 
is the established doctrine, fellow-citizens, that each 
State is to determine for herself what shall be her 
domestic institutions ; therefore, shut your ears, fel- 
low-citizens, do not listen to a fanatic who tells of 
the power of Congress to abolish slavery in the 
seceded States. Unless our southern brethren see, 
fellow-citizens, that we are ready to walk by the 
Constitution now, they will not, fellow-citizens, lay 
down their arms, and come up cheerfully and cast 
their votes for me for the next presidency, or for 
any one who will appoint me to office." 

But why trace the windings of the snake, whose 
head is radicalism, whose tail is demagogism, and 
whose crooked betweens would be the sport of 
boys rather than men, did not men know that the 
snake is the scourge of the country ? Adieu, then, to 
this part of my subject. In the following chapters, 
I shall look at the matter involved in this discussion, 
from other and different points of view. 



80 SECESSION AND SLAVERY. 



CHAPTER IV. 

THE EFFECT OF CONTRACT BETWEEN THE SECEDED 
STATES RETURNING, AND THE UNITED STATES. 

The Constitution of the United States provides, 
Art. I. § 10, that " no State shall, without the con- 
sent of Congress .... enter into any agreement 
or compact with another State, or with a foreign 
power." There is no other clause of the Constitu- 
tion whicli in any way impairs the right of the 
States to bind themselves by contract. An earlier 
part of this section, however, provides, that "no 
State shall enter into any treaty, alliance, or confed- 
eration ; grant letters of marque and reprisal ; coin 
money ; emit letters of credit ; make any thing but 
gold and silver coin a tender in payment of debts ; 
pass any bill of attainder, ex post facto law, or law 
impairing the obligation of contracts." 

The result of these provisions is, that any State 
can enter into any contract which is not a " treaty," 
or other thing mentioned in the last quoted words ; 
with this exception, that, if the contract is with an- 
other State of the Union, or with a foreign power, it 
must, to be valid, be accompanied with the consent 
of Congress. There have been several cases before 
the Supreme Court wherein these provisions were 



CONTRACT BY RETURNING STATES. 81 

considered ; suffice it, however, to say, that the right 
of the States to enter into contracts has been, in 
these cases, fully recognized ; and thus made, if ju- 
dicial decisions can add to the force of the plain 
letter of the Constitution, established law. 

But while, with the exception just mentioned, the 
States can enter into contracts, they cannot, having 
entered into them, annul them. To do so would be 
to violate the clause declaring, that they shall not 
make any "law impairing the obligation of con- 
tracts." There are several cases bearing upon this 
particular question ; but I need here refer only to a 
single series of them. The legislature of the State 
of Ohio passed, in 1845, a general banking act, 
wherein, according to the construction put upon the 
act by the Supreme Court of the United States, 
there was contained the provision, operating in the 
nature of a contract with the banks to be organized 
under it, that they should be subject to no higher 
taxation than a per centage of their profits therein 
mentioned. Afterward the legislature of Ohio, in 
the exercise of the great prerogative right of every 
State so to tax all property found within its domin- 
ions as to make the tax fully meet the expenses of 
the government, enacted a new tax law, under which 
these banks would have to pay a higher rate than the 
one specified in the original charter. This new law 
the Supreme Court of the United States held to be 
unconstitutional, as violating a valid contract made by 
the State with the banks. State Bank of Ohio v. Knoop, 
16 How. U. S. 369. The Supreme Court of Ohio 
had deemed, that the provision in the charter did 



82 SECESSION AND SLAVERY. 

not amount to a contract such as would relieve the 
banks from a further tax if the necessities of the 
State so required ; but, in the case just cited, and in 
subsequent cases, the Supreme Court of the United 
States adjudged otherwise, and enforced its own 
construction of what was claimed to be a contract. 
Finally the State of Ohio changed its constitution; 
and, by a new constitutional provision, imposed the 
higher tax on the banks. Yet the Supreme Court 
of the United States held, that the contract could 
not even in this way be got rid of; but that the con- 
stitution, as well as the statute, of Ohio, in so far as 
it impaired the obligation of the contract, was void. 
Jefferson Branch Bank v. Shelly, 1 Black, 436. See also 
Franklin Branch Bank v. The Staie of Ohio, 1 Black, 474. 
Here was an attempt, by the State, put forth first in 
the way of a legislative act, and afterward by a sol- 
emn change of the State constitution, to exercise, in 
opposition to its contract, the high sovereign right 
of taxation, a right which has no more been surren- 
dered to the United States than has the hio;h sover- 
eign right to make slaves of men ; yet the Supreme 
Court held, that there was a provision of the Consti- 
tution which reached the case, namely, the one which 
prohibited the State from impairing the obligation 
of its contract. 

Therefore we may set it down as established law, 
established by the adjudications of the tribunal of 
highest resort, as well as by the plain language of 
the Constitution, that, when a State has entered 
into any contract, she cannot, even by a change of 
her constitution, annul the contract. It is binding 



CONTRACT BY RETURNING STATES. 83 

upon her still, and the Supreme Court of the United 
States will so hold, whenever a case, involving the 
question, is brought before it. 

If, therefore, one of these seceded States comes 
back into the Union, under an agreement entered 
into with Congress, that, in consideration of being 
thus received back, or in consideration of any remis- 
sion of the penalty of treason incurred by any ot 
her citizens, or in consideration of any thing else, 
she will thenceforward hold certain classes, or all, of 
her inhabitants to be freemen, the agreement be- 
comes immediately binding upon her as a contract 
which, by no act, can she afterward impair. 

There is no need that I should trace this matter 
out into any further detail. It is, I am aware, one 
of the relio-ious tenets of our most respectable sect, 
the Cursera of Ham, that, should Congress undertake 
to do away with slavery in the present seceded 
States, those States could, Congress or no Congress, 
as matter of right, after returning into the Union, 
reestablish it. Now, should Congress be so silly, or 
so addled by the doctrines of the Cursers, as to take 
back the States by acknowledging the new State 
governments, without this precaution of a contract 
with them, the cursing doctrine might prevail. I 
do not say it would, but that Congress would be 
very recreant to her duty did she not exercise the 
precaution. 



84 SECESSION AND SLAVERY. 



CHAPTER V. 

THE EMANCIPATION PROCLAMATION. 

On the 22d day of September, 1862, the Presi- 
dent of the United States put forth a Proclamation 
of which the following are the material parts : 

" That on the first clay of January, in the year of our Lord one 
thousand eight hundred and sixty-three, all persons held as slaves 
within any State or designated part of a State, the people whereof 
shall then be in rebellion against the United States, shall be then, 
thenceforward, and forever free ; and the Executive Government 
of the United States, including the military and naval authority 
thereof, will recognize and maintain the freedom of such persons, 
and will do no act or acts to repress such persons, or any of them, 
in any efforts they may make for their actual freedom." 

He then states, that on the first day of January 
next ensuing he shall issue another proclamation, 
designating the portions of the rebellious country to 
which this provision shall apply, and closes in the 
following words : 

" And the Executive will in due time recommend, that all citi- 
zens of the United States who shall have remained loyal thereto 
throughout the rebellion shall (upon the restoration of the consti- 
tutional relation between the United States and their respective 
States and people, if that relation shall have been suspended or 
disturbed) be compensated for all losses by acts of the United 
States, including the loss of slaves." 



.THE EMANCIPATION PROCLAMATION. 85 

The Proclamation contains some other matters 
not entering so directly as these into the subject 
of this chapter. 

On the 1st day of January, 1863, the President 
put forth another Proclamation, in pursuance of the 
promise made in this one, whereof the material 
parts are as follows : 

" I, Abraham Lincoln, President of the United States, by virtue 
of the power in me vested as commander-in-chief of the army and 
navy of the United States, in time of actual armed rebellion 
against the authority and government of the United States, and as 
a fit and necessary war measure for suppressing said rebellion, do, 
on this first day of January, in the year of our Lord one thousand 
eight hundred and sixty-three, and in accordance with my purpose 
so to do, publicly proclaimed for the full period of one hundred 
days .... order and designate the States and parts of States 
wherein the people thereof, respectively, are this day in rebellion 
against the United States, [to be] the following, to wit: Arkansas, 
Texas, Louisiana [with certain excepted parishes, including, as 
excepted, the city of New Orleans], Mississippi, Alabama, Florida, 
Georgia, South Carolina, North Carolina, and Virginia [excepting 
substantially that part of Virginia which has since been formed in- 
to the State of West Virginia, and Norfolk, with its neighborhood]. 

" And by virtue of the power and for the purpose aforesaid, I do 
order and declare that all persons held as slaves within said desig- 
nated States and parts of States are, and henceforward shall be, 
free ; and that the Executive Government of the United States, 
including the military and naval authorities thereof, will recognize 
and maintain the freedom of said persons. 

" And I hereby enjoin upon the people so declared to be free to 
abstain from all violence, unless in necessary self-defence ; and I 
recommend to them that, in all cases when allowed, they labor 
faithfully for reasonable wages. 

l ' And I further declare and make known that such persons, of 
suitable condition, will be received into the armed service of the 



86 SECESSION AND SLAVERY. 

United States to garrison forts, positions, stations, and other places, 
and to man vessels of all sorts in said service. 

" And upon tins act, sincerely believed to be an act of justice, 
warranted by the Constitution upon military necessity, I invoke the 
considerate judgment of mankind and the gracious favor of Al- 
mighty God." 

These two proclamations are generally spoken of 
as one, — the Emancipation Proclamation, — and as 
such I shall speak of them in my further observa- 
tions. The Proclamation was put forth at a time 
when our national cause had become very nauseous 
to the people and powers abroad. There was, in 
the first place, intense hatred to this country abroad ; 
growing out, in part, of the fact that our civil and 
political institutions are not like those of Europe, 
and that the governing classes there fear their in- 
fluence upon the opinions and conduct of the people 
whom they govern ; and, in remaining part, out of 
the fact, that, until our secession war came, we 
seemed to be a very compact, while we were a 
rapidly increasing, power, — exciting the jealousy 
of rivalship in those who, in Europe, deemed them- 
selves to be the true masters of the world. In the 
next place, there existed an intense anti-slavery feel- 
ing in Europe, and particularly in England; pro- 
duced in part by a sincere belief, that the doctrines 
of the Church of the Cursers of Ham belonged to 
the class of spurious, and not of true, Christianity ; 
and in part by the fact, that European despots had 
all along found it convenient to point to our slavery 
as showing the baleful effects of republican forms 
of government. 



THE EMANCIPATION PROCLAMATION. 87 

There were, therefore, real enemies and real 
friends to our country abroad. But when our coun- 
try's friends abroad saw, that, while the South had 
made war in order to gain what she deemed to be 
a firmer base whereon to rear block after block, in 
addition to her former edifice of slavery, and to 
strengthen the hated edifice itself, the North, in 
giving back the proffered battle, showed as much 
regard for the old edifice as the South, and chose to 
run mighty risks of not succeeding rather than suffer 
the edifice to fall, they at first marvelled, then be- 
came disgusted, then vomited out their contempt. 
At this sick crisis in those who else would restrain 
the European governments from laying violent 
hands upon us, came the President's Emancipation 
Proclamation. It operated as a restorative to our 
else expiring friends in Europe ; and, though it did 
not cure our enemies of their hate, it left them com- 
paratively powerless for harm. 

At home, the effect of the Proclamation was to 
strengthen some in the loyal cause, and to madden 
others. Those who, at the North, ministered to our 
great Ebon Deity in the Temple of the Cursers, — 
why, they were not mad, because saints never get 
mad; but holy wrath boiled within them, and the 
incense — that is, the steam — went up ! Fanatics, 
not of the church, gave thanks to God ; and Ham 
danced in his shoes. 

But the genuine politicians were as cool as cu- 
cumbers in August. Those who partook of the 
u supper " in the inner holy place of the Church of 
the Cursers went out and said: "This sacrilegious 



88 SECESSION AND SLAVERY. 

act of the President so violateth the Constitution of 
the country, that it hath become the duty of all 
true patriots to leave off fighting the enemy of the 
country, and go to fighting the President." On the 
other hand, there were other politicians, not so holy 
as these, who said: "Let this act of the President 
stand for the present, it has saved us from a foreign 
war ; it will delude the negroes into helping us, for 
they are no brighter than are our white friends 
abroad ; and, when we have put the rebels down, we 
can then repudiate the Proclamation, and put down' 
the negroes and the fanatics together ! " The for- 
mer class of politicians were connected chiefly with 
the Democratic party ; the latter, with the Republi- 
can. There were in both parties men who were not 
politicians, and other men who were politicians of 
less unction than these. In both parties, and espe- 
cially in the Republican, there were many more — 
I trust, amounting to the large majority of the people 
connected with each of the parties — who recognized 
as true the proposition, that public faith is better 
kept than broken, even if the faith has been pledged 
without the previously-obtained sanction of the 
Church. 

Yet it is but a little while ago I saw, in a news- 
paper, an article copied from a very leading journal 
of the Republican party, in which the editor asserted, 
in the most confident language, that there was no 
considerable number of people in the Republican 
party who were not willing to repudiate the public 
faith pledged in the President's Proclamation, and 
restore all the slaves to their former status of slavery, 



THE EMANCIPATION PROCLAMATION. 89 

if the seceded States could be induced, on these 
terms, to come back ! He said (what is true, and 
properly true), that the war was not carried on by 
the general government to promote emancipation; 
therefore (what is not properly true), that the gov- 
ernment ought to repudiate its debt of promised 
freedom, contracted in subduing the rebellion, when- 
ever the seceded States expressed a willingness to 
return to their allegiance, on the basis of such repu- 
diation. He told his readers, that he should like to 
see the man who would have the hardihood to step 
forward and object to this proposition ; such a man, 
should one be found, would be quickly branded and 
hooted down ! 

This editor, let me suggest, should at once lay by 
the quill editorial, and enter into the service of the 
government as a negotiator of loans. Should he be 
able to impress capitalists with the idea which he 
strove to impress on all his readers, that, since this 
war is carried on, not to pay debts, but to subdue 
the rebellion, there is no man, unless he be some 
insio-nificant outcast from the Church, who would 
not urge the government to embrace the Jeff. Davis 
doctrine of repudiation, as the foundation whereon 
the Union should be restored, whenever Davis and 
his companions could be made willing to agree to 
these terms, — surely the ex-editorial, political nego- 
tiator of loans would be blessed with a success which 
would be most satisfactory to the southern portion 
of our country, however it might be to the northern ! 

Yet such a course, in regard to the slaves, is cer- 
tainly in accordance with the "precedents" which 

8* 



90 SECESSION AND SLAVERY. 

are by some attempted to be inwoven, in these 
days, into the law of nations. The "precedent" 
of Napoleon and the Russian serfs, before alluded 
to in these pages, has been already sufficiently dis- 
cussed in the newspapers. It was his first down- 
ward step toward the gloomy exile in which he 
died ; and, if our government would but take the 
same step, the result would surely be gratifying to 
the southern portion of the country, if not to the 
northern. Yet Napoleon was not herein a repu- 
diator; so this precedent does not come quite up to 
the point at which it would be completely " apt." 

An apter precedent, one quite in point, is the 
case of Jehovah v. Pharaoh, alluded to also some 
pages back. 

If we follow that precedent, we shall surely gratify 
the southern portion of our country, — I mean, the 
disloyal whites there, — if not the northern. The 
" case " is reported at length in the book wherein 
we read, "Cursed be Canaan." It is as follows: 

* There was a ruler over a certain country called 
Egypt, and the ruler's name was Pharaoh. A pesti- 
lent fellow, one Moses, troubled Pharaoh with appeals 
in behalf of a hated set of slaves, whose color did 
not suit the people of Egypt. It is thought, more- 
over, that their odor was not good. At length, 
trouble came ; Moses pretended, that the trouble 
came from God. But be this as it may, it came so 
thick and hard that Pharaoh was at last induced, as 
a matter of pure military necessity, in fighting off 
this trouble, to issue a much-talked-of Emancipation 
Proclamation. When the proclamation was fully 



THE EMANCIPATION PROCLAMATION. 91 

out, and had done its work, the trouble abated. 
Then said Pharaoh, " I did not go into this war with 
the trouble for the sake of freeing the slaves ; the 
trouble is over, and the masters consent to keep the 
slaves, — I should like to see the man who will say, 
that I will not condescend to make peace by with- 
drawing the Emancipation Proclamation. The pro- 
clamation is withdrawn ; the status quo is restored." 

Well, the godly in all ages are doomed to suffer ; 
so was this godly ruler, Pharaoh. Once more came 
the trouble, and it came in a form worse than at the 
former time. I need not extract the whole report, 
the reader knows where to find it ; he has seen it 
often when searching for those blessed words, 
"Cursed be Canaan;" let him look at it once more 
for himself. The end, like the end of all saintship, 
was sublime. That swim in the Red Sea ! who can 
paint its beauties and its glory? That song of 
triumph and of thanksgiving which went up on the 
other side of the sea ! who has read it without emo- 
tion ? Let me turn to the record here : " The Lord 
is a man of war : the Lord is his name. Pharoah's 
chariots and his host hath he cast into the sea : his 
chosen captains also are drowned in the Red Sea. 
The depths have covered them : they sank into the 
bottom as a stone." 

Leaving the " precedents " here, let us turn back 
and look again at the Proclamation of President 
Lincoln. 

In estimating the Proclamation, we have to con- 
sider two things, — What were the powers of the 
President ? — What did the President attempt ? 



92 SECESSION AND SLAVERY. 

It is obvious, on a mere outside view without 
any minute examination of the matter, that the 
President, as the chief of the nation, was authorized 
to pledge the nation's faith to the performance of 
those duties which the Constitution enjoins upon it. 
We have seen, that one of those duties was to 
give liberty to the slaves in the seceded States, 
and incorporate them into the body politic there. 
And although the Proclamation is not in express 
terms based on a recognition of this duty, and 
although it does not promise a complete per- 
formance of the duty, yet, on a principle familiar 
to the legal profession, it is nevertheless good as 
such promise as far as it goes, and a recognition 
of the duty may be considered to be implied in the 
promise. 

Plainly such a promise was highly important, not 
to say necessary, at the time it was made. The very 
active and vigilant Church of the Cursers of Ham 
had its priests and its ministers abroad throughout 
this whole country, and its missionaries abroad 
in foreign lands, proclaiming everywhere, that the 
Creed and the Constitution were one, therefore that 
the Constitution forbade the doing of the thing 
which we have seen it expressly enjoins. Congress 
had neglected to perform its part by the enactment 
of a statute to meet the case, and the inference was 
strong, and the wicked world without took it to be 
irresistible, that the church had in league with her 
herein the whole governmental power of the coun- 
try. Well, therefore, did the President fulfil his 
office, when, by proclamation, he dissipated this im- 



THE EMANCIPATION PROCLAMATION. 93 

posture. The Constitution, Art, II. § 3, provides, 
that " he shall from time to time give to the Con- 
gress information of the state of the Union, and 
recommend to their consideration such measures as he shall 
judge necessary and expedient? He had not recom- 
mended to Congress the passing of any law in obe- 
dience to the duty of clothing the seceded States — 
that is, the States which had denuded themselves by 
the act of secession — in those new governmental 
State garments, which, because of the necessity 
produced by the rebellion of the whites, must be 
woven, at least in part, of ebon-colored wool. 
Neither had Congress taken action upon this sub- 
ject. Yet both the President and Congress had 
called up the military power to subdue the rebel- 
lion ; and to the President it seemed fitting — so we 
may reason from the act itself — that he should an- 
nounce to the country, and especially to those not- 
disloyal persons in the southern part of the country 
whose services were needed, the governmental de- 
termination to obey, in the degree pointed out, the 
behests of the Constitution. 

There are few questions, outside the dominion of 
mathematical truth, upon which some differences of 
opinion, varying in degree, are not entertained by 
different persons. In the previous pages of this 
pamphlet, and in my pamphlet entitled " Thoughts 
for the Times," I have expressed my own clear con- 
viction, that it was the duty of Congress to provide, 
in the beginning of the war, for this new clothing 
of the revolted States. Nevertheless, the fact stands 
out in clear relief, that new State governments can- 



94 SECESSION AND SLAVERY. 

not be practically organized in these States, except 
as fast and as far as the Union's war-power over- 
comes the rebel arms. My view of this matter is, 
that the members of Congress should attend strictly 
to the duty of making the laws, and the soldiers in 
the field should attend strictly to the duty of fight- 
ing. Neither the soldier nor the congressman — 
such is my opinion — should rest, while any thing 
remains to be done belonging to his particular- de- 
partment. If the law for reclothing these denuded 
States could not be made available in the shape of 
clothes actually put on, until the stern hands which 
are wielded by our country's war-arm had taken up 
the wool, picked it, carded it, spun it, and woven it 
in our all-glorious freedom-loom, still this is no rea- 
son why the vote to have the clothing-work done 
should be withheld, as though the voters hoped for 
the opportunity to dodge the vote. 

Yet in the actual state of this world, it is not 
wonderful that the President and Congress should 
have adopted the course which was pursued. Too few 
are the men who are content simply to do, and to do 
promptly, their own duty ; and who, when this duty 
is done, can look up and " read their title clear to 
mansions in the skies," unappalled by the fear of 
being pulled down to perdition by the sins of some 
wicked neighbor. I showed, in my " Thoughts for 
the Times," that this war would not have been, but 
for the saintly horror of the South at our loose hold- 
ins:, in the North, of the tenets of the Church of the 
Cursers; and our unwillingness to be bound by 
all the new bands which the southern Cursers, 



THE EMANCIPATION PROCLAMATION. 95 

more orthodox than the northern, kept continu- 
ally forging for their heretically-inclined northern 
brethren. Had the more saintly southern branch 
been content to go alone with its negroes to 
heaven, leaving the erring North to its chosen 
outer darkness, there to be howled over only by un- 
earthly demons, the Nation had not now been 
drenched in blood. So, had Congress been content 
simply to perform her duty under the Constitution, 
not demanding to be let off until the army had first 
done its part, she would not only have pursued the 
wiser course, but her members would also have ful- 
filled the obligation of their several oaths of office. 
Yet, as man is, it could hardly be expected that the 
men of whom our national legislature is composed, 
should have done otherwise than they did. 

I look, therefore, upon the President's Proclama- 
tion, as embodying — I am not now saying how 
much more it embodies — the nation's pledge, that 
she will carry out the requirements of the Constitu- 
tion substantially in accordance with the interpreta- 
tion of it given in the foregoing pages. When the 
Proclamation was completed by the issuing of the 
part which was dated January 1, 1863, the two 
houses of Congress were in session ; and, though 
their attention was called to the matter by un- 
happy members who disapproved of it, no resolu- 
tion or act of dissent was or could be passed by 
either House. Therefore, although a negative is 
not generally, in legislation, equivalent to its oppo- 
site affirmative, yet this negative may be deemed to 
amount to an expression of the opinion of the legis- 



96 SECESSION AND SLAVERY. 

lative body, that the President was competent to 
pledge, in this way, the faith of the nation, and that 
Congress concurred with him in giving this particular 
pledge. 

There is, as the reader knows, another view of the 
Proclamation ; and, according to this other view, it 
is an act in the nature of military legislation ; done, 
by competent authority, in the course of legitimate 
military operations. This other view appears, even 
more distinctly than the one I have just presented, 
upon the face of the instrument ; but it is not within 
the scope of this pamphlet to discuss the Proclama- 
tion in this other aspect. Yet equally in this other 
aspect as in the one before mentioned, it is a pledge 
of the nation's faith. 

Some persons there are who profess to regard this 
Proclamation as a thing of no validity of any sort; 
and who are not ashamed to say, that they shall 
rejoice, when, at some future time, three million 
negroes are rebound in chains which they were told 
by a white President, a white Congress not contra- 
dicting, had been broken ; and the status quo is re- 
stored in the midst of the hissings and hootings of 
a civilized world. If ever such a carnival of hell is 
held in this country, may I not " be there to see ! " 
Were I a negro, though of an age and physical con- 
stitution not adapted to war, still I would enter this 
war as a soldier, not dreading the previously-an- 
nounced determination of the southern white power 
to play the barbarian toward me, by murdering or 
enslaving me, if captured, in disregard of the most 
sacred rules of all civilized warfare; I would fight 



THE EMANCIPATION PROCLAMATION. 97 

as a good and obedient soldier under my white 
officers ; but if, after I had helped in overcoming the 
enemy, the United States should make up with the 
conquered rebels on the condition of reducing me or 
my kindred or my color to slavery, in violation of 
the promise contained in this Proclamation of the 
President — some white lawyer, or judge, or bench 
of judges, having pronounced it unconstitutional, — 
I, too, would then play, in turn, the barbarian. 
Being placed outside the Constitution, I should not 
regard i^ as binding upon me. Being denied any 
rights under it, I should acknowledge to it no alle- 
giance. The North and the South having become 
alike barbarians as to me, I should make myself a 
barbarian as to them. While I could cling to life, I 
would slay by poison, by the hatchet, by any thing, 
whatever wore a white face ! And if innocent 
babes fell with the guilty aged ones, so let it be ! 
My every exertion should be to slay ! to slay ! 
And when at last I fell, I would gather up, in the 
skies, the souls of my slain ; and wear them as gems 
in a coronet of glory, which I would put upon 
my head ! Blessed angels should hover around me, 
and sing to me their lays of war and of love. 
Peaceful music should float to me from the bowers 
of bliss. God should bless me ; and all his universe 
of happy ones should shout amen ! amen ! as the 
smoke of the torment of my persecutors rose up 
forever and ever. 



98 SECESSION AND SLAVERY. 



CHAPTER VI. 

CONCLUDING SUMMARY. 

The reader perceives, that there are two classes 
of authority relating to the questions discussed in 
this pamphlet ; namely, the authority of oujf revered 
Church of the Cursers of Ham, and the authority of 
the Constitution of the United States as expounded 
by our Supreme Court. But for the teachings of 
the church on this subject, no doubt would be en- 
tertained by any person as to what are the teachings 
of the Constitution. And the reason why I have 
been compelled to fill a hundred pages with what 
would be sufficiently plain stated in a single page 
is, that, whenever the voice of Law speaks, it falls 
upon ears filled with the roar of the hallelujahs of 
our church. Could I obtain, but for a single moment, 
the ear of the most devout worshipper of the 
church, being likewise the most determined detester 
of the law, when the ear was swept clean of this 
hallelujah roar, I could, even in this short space of 
time, impart to him more wisdom concerning our 
Constitution than I expect any son of the church 
to derive from this entire pamphlet. 

Let me, therefore, close by setting in contrast the 
Catechism of the Church, used for infant .minds, 
with a brief Catechism concerning the Constitution : 



CONCLUDING SUMMARY. 99 



CATECHISM OF THE CHURCH. 

Question. Can you tell me, child, who made the United States ? 

Answer. Not the great God who made heaven and earth. 

Ques. Who, then, made the United States ? 

Ans. The several States, and the people thereof. 

Ques. Who made the Constitution of the United States ? 

Ans. The several States, and the people thereof. 

Ques. Who made slavery in the slave States ? 

Ans. The great God who made heaven and earth. 

Ques. Why did God make slavery in the slave States, yet did 
not make the United States ? 

Ans. This is a mystery which he has withheld from the wise and 
prudent, but has revealed unto babes. Matt. 11: 25. 

Ques. Please explain the mystery ? 

Ans. God makes all the good and bright things, but leaves all 
other things to be made by inferior workmen. 

Ques. Is this the reason why God did not make the United 
States, but made slavery in the slave States ? 

Ans. It is, most reverend sir. 

Ques. Is this the reason why God made slavery in the slave 
States, but did not make the Constitution of the United States ? 

Ans. It is, most reverend sir. 

Ques. When the things which men make, and the things which 
God made, come into collision, which must give way ? 

Ans. The things which men make, most reverend sir. 

Ques. When slavery and the government of the United States 
come into collision, which must give way ? 

Ans. The government of the United States, most reverend sir. 
Ques. When slavery and the Constitution of the United States 
come into collision, which must give way ? 

Ans. The Constitution of the United States, most reverend sir. 
Ques. When the decisions of the Supreme Court of the United 
States, and the decisions of the priesthood who minister to the 
Cursers, come into collision, which must give way ? 

Ans. The decisions of the Supreme Court of the United States, 
most reverend sir. 

Ques. What are the tenets of the Holy Church of the Cursers 
upon the question of submitting to earthly governments ? 



I cf C. 



100 SECESSION AND SLAVERY. 

Ans. There are no earthly governments over the church, but 
the church sometimes governs earthly governments. 

Ques. What is the rule which the church enjoins upon its mem- 
bers concerning their own personal submission to earthly govern- 
ments ? 

Ans. The member of the church is to submit to the earthly 
government as far as that government is governed by the church. 

Ques. What is the rule, when the earthly government is not 
governed by the church ? 

Ans. The higher law of the church then prevails, reverend sir. 

Ques. What is the rule where the people seem to be attached to 
the earthly government, yet the earthly government does a thing 
not previously sanctioned by the church ? 

Ans. It is to blacken the thing, reverend sir. 

Ques. Please explain the meaning of this term " blacken ? " 

Ans. " Blacken," reverend sir, is a word which takes its signifi- 
cance from that blest emblem of the church, a bowed negro clasp- 
ing a crushed spirit which the church has in training for heaven. 

Ques. To what is the term " blacken " or " black " applied ? 

Ans. It is applied to all negroes, as I have just mentioned. 

Ques. To what else is it applied ? 

Ans. To whatever else the church wishes to crush. 

Ques. What is the vulgar term which the ungodly sometimes use 
to signify the same thing as blacken ? 

Ans. Lie, reverend sir. 

Ques. Is it ever right to use this ungodly word, when speaking 
of the saints ? 

Ans. Never. ,It is not only wicked, but it is also highly im- 
polite. 

Ques. Name some things which the church blackens ? 

Ans. The Emancipation Proclamation, put forth by that heretic, 
Lincoln, is one of the things. 

Ques. Name other things ? 

Ans. The church blackens all persons who do not join her in 
blackening the Proclamation. 

Ques. What does the church teach concerning those who sustain 
the Proclamation ? 

Ans. The teachings of the church are always twofold ; first, her 



CONCLUDING SUMMARY. 101 

teachings to the saints ; secondly, her teachings to the outside, 
heretical world. 

Ques. What are her teachings to the saints concerning those 
who sustain the Proclamation ? 

Am. She teaches them, that, unless these heretics are destroyed, 
the church will be put down ; and, with the fall of the church, will 
fall the power of her Confederate government. 

Qaes. What are her teachings on this subject to the outside 
world ? 

Ans. She teaches the outside world, that these heretics are fa- 
natics, who would destroy the Constitution of the United States, 
pervert the war from its original purpose of suppressing rebellion, 
and never bring it to a successful conclusion. 

Ques. What teaches the church to the outside world concerning 
the duty of this country in such an emergency as this ? 

Ans. She teaches to the outside world two things ; namely, first, 
that the church is the only expounder of the Constitution of the 
United States, and that it is not safe for the common people even to 
read it ; secondly, that the people must stand by the Constitution 
as the church expounds it, and spend their strength in supporting 
it, as thus expounded, but give no strength to the government in 
its struggle to save the Constitution from being rent in twain by 
the church's blest Confederacy. 

Ques. Does the church, when addressing the outside world, 
speak of her Confederacy in the language which you, babe, have 
just employed ? 

Ans. When the church addresses the outside world, — that is, 
the world of heretics and of sinners, — she uses holy guile in her 
speech ; therefore, in order to save her reputation, so as to secure 
an influence with those whom she would win, she describes her 
Confederacy as only a combination of an abused people striving, 
unwisely perhaps, to defend and protect menaced rights. 

Ques. What are the teachings of the church to the saints con- 
cerning their duty to the Constitution of the United States ? 

Ans. She teaches the saints, that it is the first duty to overthrow 
the Constitution of the United States. 

Ques. Wbat is the teaching of the church to the outside world 
concerning that clause of the Constitution which says : " The United 
9* 



102 SECESSION AND SLAVERY. 

States shall guarantee to every State in this Union a republican 
form of government ? " 

Ans. Her teachings to the outside world, upon this subject, vary 
with the persons addressed. Here, she would be all things to all 
men, that she might by all means save some. 1 Cor. 9 : 22. 

Ques. Give some examples of her teachings on this subject ? 

Ans. To the very ignorant, she asserts that the Constitution 
contains no such provision. 

Ques. What saith she to such of the outside world as have read 
the Constitution, and know this provision is in it ? 

Ans. To some she saith, that it doth not contemplate any such 
state of affairs as exists in the United States at the present time. 

Ques. When these reply, that, this being so, and it not being 
incumbent on the United States to guarantee to the seceded States 
republican forms of government, it is best for the United States to 
govern these States as conquered provinces, or as territories, — 
what saith the church then to such heretics ? 

Ans. She doth not condescend to reason with heretics who have 
become so vile ; but she saith to the rest of the outside world, that 
inasmuch as, plainly, beyond all scope for discussion, the duty of 
the United States is, not to govern the seceded States as conquered 
provinces or as territories, but to give them republican forms of 
government, — a point expressly guaranteed in the Constitution 
itself, — those heretics who proposed such a gross outrage ought to 
be roasted over slow fires, then burnt to crisp, and then their 
ashes given to the saints to be used for snuff, seeing this unholy 
war hath made tobacco dear. 

Ques. Hath the church other methods of dealing with such vile 
heretics ? 

Ans. She proposeth, that, when this war is over, all, heretics 
be burned, and thereby peace be secured to the country. 

Ques. What saith the church to the class of heretics who 
would take the church at her own word, and give again to the 
seceded States republican forms of government ? 

Ans. She saith, that, by the Constitution, traitors who have un- 
dertaken to overthrow the government of the country, their treason 
having been prompted by their great love for the church, are not, 
for this reason, disqualified to be voters under the Constitution ; but 



CONCLUDING SUMMARY. 103 

that fanatics, and negroes, and all such creatures, who have not 
known enough to be disloyal to the government, are, by the Consti- 
tution, disqualified : so the United States must give to the seceded 
States governments based on treason. 

Ques. Which, of all the answers made by the church to the 
heretically -inclined outside world, is deemed to be the most con- 
vincing ? 

Ans. The point of making snuff has hitherto been the most 
powerful point put by the church. 

Ques, Is this point always to be deemed the most powerful ? 

Ans. The church hath a prophetic vision, that this point is to 
be superseded by the point put a little way back ; namely, that 
none but traitors know enough to carry on republican forms of 
government, therefore that they must be selected in the seceded 
States to carry on such forms. 

Ques. If the negroes knew enough to carry on republican forms 
of government, would there be any objection to permitting them, 
and loyal white persons, in combination, to carry on such forms to 
the exclusion of the traitors ? 

Ans. Seeing the traitors will not carry on such forms, there 
would be one objection only, which is, that it would be impossible 
any government could stand, which is not built upon the rock of 
the church. 

Ques. Why could not the government of the' United States 
stand, without resting on the rock of the church ? 

Ans. There are many reasons, most reverend sir ; but the reason 
which this babe can give is, that the government could not stand 
without a Constitution, that there can be no constitution without an 
expounder thereof, and that the church permits none but herself 
to expound the Constitution of the United States. 

Ques. What would be the effect of the church's permitting out- 
side sinners to expound the Constitution of the United States ? 

Ans. It would be equally disastrous as if she permitted fanatics 
and heretics to expound it. 

Ques. What would be the effect of permitting fanatics and her- 
etics to expound the Constitution of the United States ? 

Ans. There are no words adequate to convey the idea of the 
effect ; it would be terrible. 



104 SECESSION AND SLAVERY. 

Qaes. What would be the effect of totally overthrowing the 
church in this country? 

Ans. The effect is one which could not be contemplated ; in the 
first place, the Constitution would be killed ; that is, the constitu- 
tion of the church. 

Ques. What amount of knowledge is it necessary, by the Con- 
stitution of the United States, as expounded by the church, a voter 
should possess ? 

Ans. He need not possess any worldly knowledge ; but he ought, 
properly, to possess that knowledge which consists in understand- 
ing the catechism of the church. 

Ques. Does the question of freedom or slavery depend upon 
how much the person who is to be made a freeman or a slave, 
knows ? 

Ans. It does not ; but here is a point, very nice indeed, not given 
to babes to explain. It is taught to the saints, that all persons who 
do not understand the mysteries of the church, and all persons who 
earn their bread by the sweat of their brows, — brow-sweat being 
detrimental to true religion, — ought to be made slaves. Here is 
a mystery which this babe cannot fully explain. 

Ques. Suppose the negroes do not know enough to vote, is that 
a reason why they should not be made free, so as to lend their sup- 
port, though not as voters, to the republican governments to be 
established in the seceded States in the place of those which the 
rebellious people overthrew ? 

Ans. No, that is not the reason ; but the reason is, that the 
tenets of the church do not permit negro slaves to be made free. 

Ques. Is there any provision, corresponding to this blessed 
tenet of the church which forbids freedom, to be found in the Con- 
stitution of the United States ? 

Ans. The church teaches, that all her tenets are so many dis- 
tinct parts of the United States Constitution ; otherwise, there is 
in the Constitution no such provision. 

Ques. Does not the Constitution guarantee, that, though a State 
secedes, still slavery shall be permitted to stand in the State ? 

Ans. This is a provision, reverend sir, clearly laid down in the 
articles of our holy church. 

Ques. Are not the articles of our holy church deemed by all 
saints to be superior to the articles of the Constitution ? 



CONCLUDING SUMMARY. 105 

Ans. They are, reverend sir. 

Ques. Is it to be tolerated for a moment, that the Constitution 
should ever be set up above the church ? 

Ans. Never, for a moment, reverend sir. 

Ques. If any man attempts to set up the Constitution above the 
church, what does the church do ? 

Ans. Blackens him, most reverend sir. 

Ques. What saith the church about such a man ? 

Ans. She saith that he is a fanatic. 

Ques. What else saith the church ? 

Ans. She saith that he is a radical, reverend sir. 

Ques. What else saith the church ? 

Ans. She saith that he is an enemy to the Constitution, reverend 
sir. 

Ques. What more, saith the church ? 

Ans. She saith, that, when this war is over, the man is to be 
crushed, reverend sir. 

Ques. Is the church always to triumph ? 

Ans. Prophecy telleth of a beast that is to make war with the 
saints and to overcome them. Rev. 13 : 1, 7. 

I perceive that the Catechism is quite too long 
to be inserted entire in these pages. There are few 
demagogues who do not know it all by heart ; and 
the specimen here given will serve for those read- 
ers who are not instructed in the demagogic trade. 



CATECHISM OF THE CONSTITUTION. 

Question. Are the seceded States now States within the Union, 
or are they out of the Union ? 

First possible Answer. They are out of the Union. [The result 
of this answer, the reader sees, is, that we should let them go. This 
is what the rebels claim.] 

Second possible Answer. They are in the Union, but they are 
no longer States. [Then they should be governed as conquered 



106 SECESSION AND SLAVERY. 

provinces, or as territories. This is a result which all persons 
among us who call themselves " conservatives," have hitherto 
scouted, as a political heresy almost as bad as secession itself.] 

Third possible Answer. They are yet States in the Union, and 
they have State governments. [Then their senators and repre- 
sentatives sit in the Capitol at Washington, their State officers are 
sworn to support the Constitution, and so on. This is what every- 
body knows is not true in fact, it is not recognized as fact by the 
authorities at Washington, or by any other authorities or people on 
earth ; therefore this answer is not admissible.] 

Fourth possible Answer. The seceded States are still States in 
the Union, but they are denuded of their State governments. [This 
is the position of the present pamphlet.] 

Question Second. This fourth answer to the first question being 
assumed to be correct, — Is it the duty of the United States to 
clothe these denuded States in governments republican in form ? 

First possible Answer. It is not. Neither Art. IV. § 4, of the 
Constitution, nor any other clause, applies to the case. [Then the 
conservative part of the country has been, from the first, in the 
wrong. There is no limit, therefore, to the power which the United 
States government has over the seceded States. As there are no 
governments in these States, the full governmental authority, as 
known in public law, is in the United States ; since the existence 
of any portion of the country without government is a thing not 
admissible in theory, and not possible in fact.] 

Second possible Answer. It is for the seceded States to clothe 
themselves, of their own motion, in loyal governments, under the 
Constitution of the United States. [This is what the particular 
persons, in the seceded States, who took the States out of the Union* 
have refused, and still refuse, to do. Other persons in these States 
are willing. This answer, then, brings us to the doctrine maintained 
in this pamphlet, namely, that the willing should be permitted — 
by congressional act authorized — to execute their desire.] 

Third possible Answer. The negroes are too ignorant to carry 
on State governments. [This answer takes us into a field of dis- 
cussion not lying within the province of this pamphlet. The Con- 
stitution of the United States has not declared them to be too igno- 
rant, and the object of this pamphlet is to discover what is the law. 



CONCLUDING SUMMARY. 107 

The Supreme Court of the United States holds, that they are not dis- 
qualified by reason either of ignorance or of any thing else. As "a 
question of fact, negroes carry on governments in Hayti, in Liberia, 
and in other places. Whether they are too ignorant or not, is mat- 
ter of private opinion, not of law. According to the opinion of 
the dominant classes in the Old World, common white people are 
too ignorant. Our laws have discarded that opinion, and discarded 
also the same opinion as applied to negroes. Yet, in fact, should 
the negroes be permitted to exercise civil rights in the seceded 
States, the governments would not be negro governments ; for the 
white element would, even then, be the controlling one. There is 
a much stronger probability, that, under our naturalization laws, 
the people of some foreign country will become the governors of 
our native-born people, than that, under the law of our Constitu- 
tion, enforced in the seceded States, the negroes will become the 
rulers over the whites.] 

Fourth possible Answer. The United States must clothe these 
States in republican governments under the Constitution ; taking 
for the purpose, the material which presents itself, namely, the 
negroes, and the loyal whites. 

This last answer brings us again to the doctrine 
which this pamphlet maintains. It is what the 
writer believes to be the doctrine of the law. And 
in all the discussions which the times have brought out, no 
man has yet appeared to controvert, on any basis of legal 
authority, this doctrine. Those who have combated 
the assumed right of the United States government 
to give freedom to the slaves in the seceded States, 
have directed their arguments against other views 
of the Constitution than those put forth in this 
pamphlet, not against these views. 

Ye ministers of the Church of the Cursers ! bring 
now on your learned lore. Present one authority 



108 SECESSION AND SLAVERY. 

recognized in our law, against some one proposition, 
TfflP be by yourselves selected, out of the many legal 
propositions laid down in this pamphlet; or else ac- 
knowledge, that the doctrines of your church are 
not the doctrines of the law and the Constitution 
of this country. 

It is not for me to say, what a Curser can find 
when he turns over the books of our law. I will 
close this pamphlet with this statement, namely, that 
it has been my almost constant study, since the 
mutterings of the coming tempest of war were first 
heard among us, to ascertain what the law, as actu- 
ally adjudged by our courts, and held by writers of 
authority, taught concerning the matters discussed in 
the pages of this pamphlet, and concerning the 
other legal questions involved in our present 
troubles, and that I have not — I now speak par- 
ticularly of that part of the pamphlet which fol- 
lows the first chapter — found one line written 
by any judge, whether on or off the bench, or 
by any writer of recognized correctness of opin- 
ion, contradicting any one proposition stated herein 
to be law. If another man finds what I have failed 
to find, let him announce his discovery to the pub- 
lic ; but, until he does, let him beivare hoio he attempts 
to lie down the truth. 



•g'12 



